December 5, 2014

Michigan Veterans Receiving Benefits Due For A Raise

As the year draws towards an end, the annual cost of living adjustments (COLA) for social security and other govenmerntal benefits are released. Hot off the press and effective January 1, 2015 the following will apply to qualified veterans receiving and or applying for non-service connected pension benefits in the form of aid and attendance:

Surviving Spouse $1,149.00

Single Veteran $1,788.00

Married Veteran $2,120.00

Improved Pension only $1,404.00

2 Married Veterans $2,837.00

Benefits can be used to help offset the cost of in-home, assisted living or other long term care.

If you have questions about becoming eligible to receive these benefits, please call our offices in both West Michigan at (616) 931-3670 or in Metro Detroit at (586) 264-3756.

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November 28, 2014

Picking a Fiduciary under Michigan Law

Now that you know the basic information about fiduciaries from our Fiduciaries: A Closer Look blog article, it is time to consider which individuals or entities are appropriate for these positions. If you live in Metro Detroit or West Michigan we can help you with your estate planning, but first you need to determine who will serve as your fiduciaries.

Personal Representative

The term personal representative applies to testate and intestate administration and replaces or includes the former titles of executor and administrator.

The personal representative’s primary job is to wind up the affairs of the decedent. It is a short-term job that entails locating and valuing assets, paying claims, taxes, and expenses; and making distributions to the beneficiaries. The role is quite different from the ongoing management role of a trustee.

It may be difficult to decide whether to name an individual or a corporate fiduciary. The corporate fiduciary typically is experienced in settlement procedures, professional asset management, and investment selection, but its fees may be too expensive for the estate. An individual, often a family member, is perceived as having the advantages of knowing the decedents affairs and the beneficiaries’ characteristics and personalities and being less costly to the estate.

Sometimes a testator prefers to name several persons, such as all of the children. The drawbacks of such an arrangement include complicated decision-making and administrative inconvenience that may lead to delay. Another drawback is the potential for miscommunication, especially when the parties are separated by distance. On the other hand, the arrangement may be the best choice when everyone should be included in settling the estate.

You should also name alternative nominees. There is no assurance that individual nominees will survive or will be willing to serve. Even a bank may decline to act under certain circumstances, or may not be in existence at the time of administration.

Trustee:

A trustee owns and manages property for the benefit of another. While the personal representative must quickly wrap up the decedent’s affairs, the trustee generally has a long-term management and investment function. Because of the differences in these respective job functions, you may have different nominees for each.

Because the function of a trustee is ongoing, you should select a trustee who most likely can serve the anticipated term of the trust. Banks offer the important advantages of permanence and stability. However, individuals may be more appropriate than banks, depending on the circumstances. The reason for creating the trust should influence the choice of trustee. If the purpose of the trust is for concerns that the beneficiary cannot manage their finances, then the trustee should have investment experience. If the purpose of the trust is to look after the daily welfare of a person, then a trustee should be someone who can take time to listen to, and make personal arrangements for, the beneficiary as well as handle investment and tax matters.

Guardian:

A guardian is appointed by the probate court or designated by parental or spousal nomination in a will or other document to exercise powers over a minor or legally incapacitated individual. MCL 700.1104(l). Generally, a guardian “has the powers and responsibilities of a parent.” MCL 700.5215.

Choosing a guardian for a minor or legally incapacitated individual is very important. Many young couples are concerned about a family fight over custody if the children are orphaned, or they fear that someone will be appointed who does not share their philosophies about child rearing.

Selection Considerations:

o Does this individual live in Michigan?
o If you appoint a couple, what happens if they get divorced or one dies?
o Does this individual share your child rearing philosophy?
o Does this individual have the financial ability to raise the children?
o Does this individual have other children?
o Does this individual want to raise your children?
o Does this individual travel frequently, or work long hours?

Conservator:

A conservator exercises full powers over the assets of a protected person. MCL 700.1103(h).

The conservator’s role is to manage and invest assets. Thus, only persons or institutions with skills in those areas should be candidates for nomination. Generally, the guardian will also be nominated as conservator. However, if this individual cannot manage money, then you may want to choose a different conservator.

If you are considering your estate plan, we can help. Serafini, Michalowski, Derkacz & Associates, P.C. is a general practice firm specializing in Estate Planning, Probate, Elder Law, Personal Injury, Disability Benefits, Bankruptcy, Family Law and Criminal Defense. We may be reached at 1 (866) 529-3537; in Metro Detroit at (586) 264-3756; or in West Michigan at (616) 931-3670.

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November 21, 2014

Fiduciaries in Michigan

So you live in Michigan and have finally decided to create an estate plan and it is time to choose a fiduciary – but what does that really mean?

A fiduciary is an individual that stands in a special relation of trust, confidence, or responsibility in certain obligations to the testator. Michigan law creates several different types of fiduciary positions for estate planning.

Fiduciaries, such as a personal representative and trustee, owe obligations of prudence, reasonableness, and loyalty to the person for whom he or she acts.

A personal representative settles an estate in Michigan. In general, the personal representative must observe the “standard of care applicable to a trustee” and must settle the estate “as expeditiously and efficiently as is consistent with the best interests of the estate.” MCL 700.3703(1). For these purposes, the personal representative has broad authority to engage in a wide range of transactions.

A trustee has “all powers over the trust property that an unmarried competent owner has over individually owned property” and “[a]ny other powers appropriate to achieve the proper investment, management, and distribution of the trust property.” Thus, absent a restriction in the statute or the trust instrument, a trustee possesses very broad powers to act, so long as the powers are used prudently and in line with the purposes of the trust.

A power of attorney is a person that has powers conveyed to him or her through state statute. A person is selected as an “agent” by the document signor. Often, the agent is also referred to as an “attorney-in-fact” or “power of attorney”. As noted in our prior post, a power of attorney can convey specific or general all encompassing powers to an agent. The power of attorney is designed to avoid BOTH guardianship and conservator pursuant to state law.

Although fiduciaries are granted broad authority, they are critical for the distribution of your estate. Thus, is it important to carefully consider which individuals can be trusted with this power, and who will use this power to your benefit, by administering your estate in the most favorable manner.

For more information on the selection of fiduciaries, as well as, a more in depth discussion on their powers, contact your Michigan estate planning attorneys at Serafini, Michalowski, Derkacz & Associates, P.C. at either 1 (866) 529-3537; locally in Metro Detroit at (586) 264-3756; or, in West Michigan at (616) 931-3670.

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November 18, 2014

Michigan Durable Power of Attorney

Unlike conventional estate planning documents that deal with transfer of property to beneficiaries upon your death (i.e. last will and testament, or revocable trusts) the durable power of attorney operates during your lifetime and allows you to chose individuals to act on your behalf. At Serafini, Michalowski, Derkacz & associates, P.C., our estate plans generally include durable powers of attorney, as these documents are just as important as wills and trusts.

A power of attorney allows a person (the principal) to authorize another person (the agent) to act in his or her place. In Michigan, a Durable Power of Attorney (DPOA) is defined as a power of attorney by which a principal designates another as the principal’s attorney in fact in writing and the writing contains the words “This power of attorney is not affected by the principals subsequent disability or incapacity, or by the lapse of time” (DPOA Effective upon Execution) or “This power of attorney is effective upon the disability or incapacity of the principal” (DPOA Effective upon Disability).

A Durable Power of Attorney Effective upon Execution allows the agent’s authority to begin immediately after the written DPOA is signed. There are dangers in allowing an agent’s authority to begin immediately, and you should consider whether you trust the agent to have this power when you are not disabled. Although dangers are associated with a power that is immediately effective, there are also advantages. A primary advantage to making the DPOA effective immediately is that it eliminates the need to produce evidence that the agent’s authority has been triggered. A DPOA effective upon execution is generally favorable to married couples, where the benefit of acting anytime outweighs the concern of giving the agent too much power while the individual can make their own decisions.

A Durable Power of Attorney Effective upon Disability is contingent on the event of disability and protects against the possible unintended use of the power by the agent while the principal is not disabled. The problem with DPOA’s effective upon disability is that the principal must be declared disabled. An individual is declared disabled by court determination or the written certification of two licensed physicians. A DPOA effective upon disability is best for single individuals that do not want their agent to bind them during periods when they can make their own decisions.

Although a DPOA can be broad or specific, the agent generally has powers to handle the following:
1.) Collection and management of real or personal property
2.) Buying and selling of real property
3.) Borrowing money
4.) Business
5.) Banking
6.) Tax returns and reports
7.) Safe-deposit boxes (access to and removal of property from)
8.) Proxy rights
9.) Government benefits
10.) Employment benefits
11.) Legal and administrative proceedings
12.) Life insurance
13.) Transfers in trust
14.) Delegation of authority

For more information regarding powers of attorney, contact your Michigan estate planning attorneys at 1 (866) 529-3537.

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November 14, 2014

Updating Your Estate Plan

Estate planning for Michigan residents has become more user friendly over the past few years with the introduction of the Michigan trust Code (MTC) in 2010 and the Estates and Protected Individuals Code (EPIC) in 2000 it is clear that individuals have more power in preparing their own estate planning documents. Despite the more user friendly law, one thing remains clear--in order for changes to be effective they most clearly state the trust maker or testator's intent.

Continue reading "Updating Your Estate Plan" »

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November 11, 2014

Thank You Veterans

Thank you to all Michigan Veterans that have served our country. As a Michigan based law firm, we are proud to assist veterans with their benefits. Although we specialize in elder law and non-service connected pension benefits including Aid and Attendance, we can also provide assistance to veterans that have been wrongfully denied service connected benefits.

The most common service connected benefit claims that we are asked to pursue are those claims resulting from exposure to Agent Orange during the Vietnam era. Most veterans applied prior to the August 2010 ruling that created an entire list of presumptive conditions that will qualify for service connected disability benefits. Conditions can include diabetes, pulmonary problems, neurological disorders and certain heart conditions.

If you are a veteran and have previously been denied benefits related to any condition associated with Agent Orange exposure please call 1-866-529-3537 or locally at either (586) 264-3756 in Metro Detroit; or, (616) 931-3670 in West Michigan.

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October 28, 2014

MIchigan Veteran's Concerned with VA Benefits

Recent headlines indicate that there will be significant changes with the Department of Veterans Affairs (VA). If you are in metro Detroit or the Grand Rapids area, we can help explain these changes.

Many of these changes are caused by the backlog of applications for "service connected" pension benefits and healthcare benefits. A recent article in the Washington Post suggests that the problem not only exists within the Department of Veterans Affairs but extends into the Social Security Administration and other governmental agencies.

Despite the backlog, the federal government through the president's executive order maintains that applications for "non-service" connected benefits, including improved pension and aid and attendance benefits will continue to be processed in a timely fashion.

The executive order entered in 2012 did many things. In addition to reallocating resources within the VA to process new applications for non-service connected benefits, the VA also eliminated the need to file the annual Expense Verification Report (EVR), formerly an annual requirement for continued eligibility.

For now, you can reasonably expect that most non-service benefit applications will be processed in under six (6) months, if they are filed timely, are complete, accurate, and prepared using the services of a Veteran Service Organization (VSO) or accredited agent.

If you need assistance with an application for non-service connected benefits, improved pension benefits, or aid and attendance, our firm can help locate an accredited agent, VSO, or assist you with the application itself for no charge.

Call first, act second. 1 (866) 529-3537.

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February 26, 2014

Understanding Your Military Service Characterization

Are you a military veteran who lives in the Detroit area and have questions about VA Benefits? If so, it is important to understand how your service is characterized because your eligibility for benefits is directly tied to your military service characterization.

Anyone who has served this country in uniform will tell you that they serve with the goal of separating from active duty with an Honorable service characterization. And for a vast majority, this desire stems from none other than the pride of serving our nation with honor. However, apart from the prestige associated with serving with honor, an Honorable service characterization carries with it a vast array of benefits that are lost as the characterization is downgraded. As a former Air Force prosecutor, and a continuing member of the Air Force Ready Reserves, I became intimately familiar with the impact that service characterization can have on a veteran’s ability to collect benefits through the Department of Veteran’s Affairs (VA). The information that follows is designed to explain the various types of service characterizations, while subsequent blog entries will focus on service characterization’s impact on VA benefits and the process of appealing for relief through the Board of Correction for Military Records.

A military member’s separation from active duty will fall into one of the following two categories: 1) Administrative, or 2) Punitive. Within the two categories of separations, each category is further divided into individual service characterizations. Administrative service characterizations include: 1) Honorable, 2) General (Under Honorable Conditions), or 3) Under Other Than Honorable Conditions (UOTHC). Punitive discharges, on the other hand, are characterized by either a Bad Conduct Discharge (BDC) or a Dishonorable Discharge (DD).

To receive an Honorable service characterization, a service member must have met or exceeded the required standards of duty performance and personal conduct expected of members of the Armed Forces. A General service characterization is given to service members whose performance is satisfactory, but is marked by a considerable departure in duty performance and/or the conduct expect of military members. The UOTHC characterization is the most severe form of administrative discharge, and represents a significant departure from the conduct and performance expected of all military members. UOTHC characterizations are typically given to service members convicted by a civilian court, or can be accepted in-lieu of court-martial proceedings at the request of the service member.

Administrative separations make up the majority of military separations and include, among other things, those members who separate following the expiration of their service commitment. However, as alluded to above, some administrative separations are the result of misconduct on the part of the member. For instance, military commanders have the authority to discharge a member for drug abuse, repeated failure to meet military standards (including fitness), a pattern of minor disciplinary infractions, or for the commission of a serious offense. While some of these members will still be separated with an Honorable service characterization, many will be separated with a less favorable characterization. Under Department of Defense regulations, a member being administratively separated from active duty with a recommendation for a General service characterization may be entitled to an administrative board hearing. Specifically, members who have attained the rank of E-5 or above, or who have accumulated 7 years or more of active duty service, are entitled to an administrative board hearing if they so desire. Members with less than 7 years of active duty and below the rank of E-5 are not entitled to a board hearing and can be separated with a General service characterization upon a commander’s recommendation. Members recommended for a UOTHC characterization are board entitled, regardless of rank and length of service, upon election.

Punitive discharges can only be adjudged at a court-martial proceeding. A General Court-Martial has the authority to adjudge either a BCD or a DD, while a Special Court-Martial can only adjudge a BCD. A punitive discharge is considered a form of punishment, but can only be issued to an enlisted service member. If an Officer faced trial by court-martial, an Officer could receive a Dismissal, a separation carrying the same consequences as a DD.

In subsequent blog entries, I will provide more details regarding how each downgrade in service characterization can impact a member’s benefit entitlements.

As always, if you have specific questions about your eligibility for benefits, give the attorneys at Serafini, Michalowski, Derkacz & Associates, PC a call at (866)529-3537, that’s (866)LAW-ELDR.

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February 21, 2014

VA Benefit Increases

Despite the budget battle, the federal government has approved an increase for non-service connected benefits provided by the VA for wartime vets equal to the Social Security annual cost of living adjustment. If you are a Michigan wartime veteran, or a family member assisting a Michigan wartime veteran, it is important to understand Aid and Attendance.

This benefit is designed to provide an opportunity for an aging or disabled veteran to receive assistance to otherwise allow an individual to avoid nursing home care and, or, to age in place. The benefit can be as high as $2,000.00 per month and can be used to pay for in home care, assisted living, and, in some circumstances, senior independent living where care is provided.

If you are a wartime veteran that needs assistance or are a family member of a WWII, Korean War, or Vietnam era veteran, please call to learn more about these benefits. This benefit can be the answer to long-term care.

You may reach our offices in West Michigan and the Metro Detroit Area by dialing 1-866-529-3537 (1-866-LAW-ELDR) or receive a referral to our affiliated Center for Veteran's Planning offices in the greater Kalamazoo and Grayling areas.

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February 14, 2014

VA Benefits for Assisted Living

Detroit and Grand Rapids area veterans may be eligible to receive VA benefits to supplement the cost of their care for either assisted living, independent living with care, or in home care.

Through the Department of Veterans Affairs (VA) non-service connected benefits program aging and disabled veterans that need assistance with two (2) or more activities of daily living may qualify for monthly benefits of put to $2,000.00 per month. These benefits may be used to offset the cost of care by supplementing monthly social security and pension income. Although eligibility for these benefits may be confusing, help exists to those who may qualify. By working with a skilled elder law attorney, it is possible to qualify for benefits.

If you are residing in the metro Detroit area, Grand Rapids area, Kalamazoo area, or are in Northern Michigan and have questions about qualifying for VA benefits for assisted living or in-home-care call SMDA P.C.1-866-LAW-ELDR or 1-866-529-3537.

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February 12, 2014

Detroit Area VA and Elder Law Firm Expands

If you are a loyal listener to WYCD 99.5 in the metro Detroit area, you have probably heard our new advertisements for elder law and VA benefit planning. SMDA P.Chttp://www.smdalaw.com. or Serafini, Michalowski, Derkacz and Associates, P.C. has established itself as one of the premier elder law and long term care planning law firms in the metro Detroit Area.

Our firm specializes in the issues that affect "baby-boomers" and their aging parents. Although it is no secret that we are all living longer, it is sometimes a secret how to enjoy life beyond retirement and still be able to afford care and assistance beyond our golden years. Through estate planning and long term care planning techniques our firm can assist you and your family with providing the best quality of care at the lowest cost possible.

Not only are we able to help those in metro Detroit with their needs; our satellite office in Zeeland, Michigan stands ready to service clients in West Michigan. In addition, we are pleased to announce working relationships with The Law Offices of Grossman & Moldovan, in the Kalamazoo area and northern Michigan through an affiliation with Carey & Jaskowski, P.C. in Grayling, Michigan. Our network of attorneys are able to service clients throughout the state of Michigan,

If you are in Michigan and have elder law questions, VA benefit planning questions, or estate and probate questions, please call (586) 264-3756.

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October 23, 2013

A Michigan Veteran's Perspective on VA Benefits

As the newest member of the team at Serafini, Michalowski, Derkacz & Associates (SMDA), I’d like to take a moment to introduce myself to those who frequently read this blog.

My name is Shane Childers, and I am excited to be a part of a firm with offices in both Sterling Heights and Zeeland, Michigan, that works extensively in the areas of estate planning, elder law, probate and estate administration. And as a former military member, and current member of the Air Force Ready Reserves, I am even more excited about continuing my work with our nations veterans as part of our veteran’s law practice.

My legal career began when I joined the United States Air Force JAG Corp after graduating from law school and passing the bar exam in 2008. As a member of the JAG Corp, I worked in several unique areas of the law. For instance, I served as the Chief of Military Justice at Ellsworth AFB, SD, where I served as the lead prosecutor for military courts-martial. As a prosecutor, I handled a broad array of criminal cases. I also earned a Meritorious Unit Award and an Air Force Commendation Medal for my service while at Ellsworth AFB, which included advising B-1B pilots and squadron commanders on the Law of Armed Conflict and the Geneva Convention while working in support of Operation Odyssey Dawn. However, the most rewarding accomplishments of my military career involved the assistance I was able to provide to many of our nations retired and disabled veterans. And it is with great pride that I will continue my work with our nation’s greatest heroes as a member of the team at SMDA.

Although the Department of Veterans Affairs (VA) is a great organization, it is still a part of the Federal Government and littered with red tape. My own experiences as a veteran have shown me that the VA, though designed to “care for him who shall have borne the battle, and his widow, and his orphan,” is often more focused on trying to dismantle a deserving veteran’s claim for benefits. Similarly, as a military attorney I worked with many veterans who had been wrongfully denied retroactive benefit payments, had been given a disability rating well below what they were entitled to, or had otherwise been given wrong or misleading information by the VA. As an attorney with knowledge of VA laws and regulations, I have been able to help veterans secure benefits they would never have otherwise recovered.

If you or a loved one who served in the military have been denied benefits through the VA, if you are struggling to navigate the VA’s red tape, or if you are otherwise confused about what benefits you may be entitled to, give our office a call. We can help.

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