September, 2020 | Shah & Associates, P.C. Estate Planning & Elder Law Blog
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How Much Does an Agent Get Paid for Power of Attorney Services?

September 24, 2020

Filed under: Power of Attorney — Laura Pennington @ 1:21 pm

If you intend to appoint another person to serve as your attorney in fact or agent for health care, it can be confusing to determine what they should be paid. In most cases the people who are appointed in these roles are family members or friends and serve as your health care power of attorney without being expected to be paid for their services. NJ-power-of-attorney

This is true of legal and financial matters handled under durable powers of attorney as well. In certain situations, however, you might appoint a different person in the role of power of attorney, such as an accountant or a lawyer, in which case those professionals would charge for their time.

This is because these professionals would be hesitant to take on the time consuming responsibilities of a personal nature so you might be able to agree on an hourly rate or even something that seems less like employment, such as making a donation to their favorite charity if your friend or family member is interested in serving as your POA agent.

If you are serving as a power of attorney for someone else, make sure you have a conversation first about whether you will be paid for this role or not. It’s critical to understand this especially if the person that is creating the POA has a long list of tasks you’ll need to manage in the event they become incapacitated.

For more questions about who should be considered as an ideal attorney in fact or power of attorney agent, sit down with your estate planning lawyer to discuss your current documentation and to ensure it aligns with your needs.  At our NJ power of attorney client meetings, we help our clients understand what is involved in crafting this document and in choosing someone to serve as your attorney in fact.

Why Investors Might Think Twice About Chasing the Biggest Stocks

September 23, 2020

Filed under: Estate Planning — Raymund Rasco @ 4:31 pm

Average Annualized Outperformance of Companies Before and After The First Year They Became One Of The 10 Largest In The US
Compared to Fama/French Total US Market Research Index ,1927–2019

As companies grow to become some of the largest firms trading on
the US stock market, the returns that push them there can be impressive.
But not long after joining the Top 10 largest by market cap, these
stocks, on average, lagged the market.

• From 1927 to 2019, the average annualized return for these
stocks over the three years prior to joining the Top 10 was nearly
25% higher than the market. In the three years after, the edge was
less than 1%.

• Five years after joining the Top 10, these stocks were, on average,
underperforming the market—a stark turnaround from their earlier
advantage. The gap was even wider 10 years out.

• Intel is an illustrative example. The technology giant posted average
annualized excess returns of 29% in the 10 years before the year
it ascended to the Top 10 but, in the next decade, underperformed
the broad market by nearly 6% per year. Similarly, the annualized
excess return of Google five years before it hit the Top 10 droppedby about half in the five years after it joined the list.

Expectations about a firm’s prospects are reflected in its
current stock price. Positive news might lead to additional
price appreciation, but those unexpected changes are
not predictable.

Sources: Dimensional Fund Advisors LP is an investment advisor registered with the Securities and Exchange Commission.

How Does Undue Influence Impact an Estate Plan?

Filed under: Probate — Laura Pennington @ 1:32 pm

Undue influence happens when an outside party exerts pressure on an individual causing that individual to adjust their estate plans to the benefit of the influencer. In simple terms, this can often refer to one person taking advantage of another. A live in care provider to your elderly loved one, for example, might exert undue influence on a loved one, convincing that elderly family member to update their estate plan so that it significantly benefits the care provider.

In many cases the influencer could be involved in separating the family member from his or her loved ones to create a direct sense of connection and dependency. Those individuals suffering from a form of dementia, people with disabilities and elderly people are most susceptible to the impact of undue influence. It’s important to note that the influencer could be a person outside or inside the family.

If you suspect that your loved one was a victim of undue influence that caused significant changes to an existing estate plan, you can contest the trust or will that was updated at the influencer’s request once the estate has been admitted to probate. There are a few different factors that the court will explore when determining whether or not undue influence was at play.

These primary indicators can include unexpected gifts, whether or not the testator was isolated, the testator’s mental and physical state at the time of the updated estate plan, and scrutinizing any special relationships that the testator had with the influencer. For more information about avoiding undue influence in your own estate plan and protecting your interests now, set up a time to sit down and discuss your estate plan with a lawyer.  Need more support or have specific questions about your NJ estate plan? Set up a time to speak with our trusted estate planning lawyers in NJ. 

Get an Attorney to Review Your POA Document

September 21, 2020

Filed under: Power of Attorney — Laura Pennington @ 4:44 pm

Has someone you know asked you to execute a power of attorney that names you as their agent? Never sign a power of attorney document without having your own estate planning lawyer view it first.

There are many different mistakes that could be made in a power of attorney document and all of them can be avoided by consulting with a trusted estate planning lawyer in your area.

Making a mistake in your POA document could be very expensive and problematic, particularly if you unintentionally give authority over you or your assets to someone who can’t be trusted. Many of the most common POA mistakes can be avoided but having a relationship with an estate planning attorney who can help spot these errors in your existing POA document or can advise you about the proper language to include in a new one.

Some of the most common POA mistakes include:

  • Using a general POA when a limited power of attorney would have been more appropriate.
  • Naming a person that you can’t truly trust as your agent.
  • Giving an agent who cannot be trusted with too much power.
  • Executing a power of attorney to someone who cannot serve in that role, such as a treating physician.

For more advice on how to minimize the possibility of a poorly executed POA or a POA that exerts unintended authority on untrustworthy people, set aside a time to consult with a knowledgeable estate planning lawyer about the documents.

Can a Person Still Sign a Power of Attorney If They are Legally Incompetent?

September 17, 2020

Filed under: Estate Planning — Laura Pennington @ 4:45 pm

A person cannot sign any legal document including one that would appoint a power of attorney if they are incapacitated. This is one of the most common misconceptions about the power of attorney document. Only a mentally competent individual is able to appoint a power of attorney for themselves.

Once a person lacks legal capacity such as that they have experienced significant cognitive decline as a result of dementia or another circumstance, they are no longer eligible to execute a power of attorney document that would be classified as legally valid. These documents need to be created well in advance of a person being classified as incompetent.

It can be helpful for someone who is of older age and wishes to prevent problems surrounding their POA document to schedule a consultation with an estate planning attorney to walk through the process of creating a POA and deciding whether it should be general or specific in nature. It is also helpful for a person who is currently legally competent and wishes to document this to have a physician prepared to write a letter about the person’s state of mind at the time that the power of attorney is executed.

This can be very helpful in the event that another person is challenging the legality of the power of attorney or any other challenges arise in the agent’s attempt to carry out their duties. Schedule a consultation with an estate planning attorney in your area to learn more.   Since you need to sign a POA before you’re incapacitated, now is the right to make this decision to install the right person in this all-important role.    

What Happens When a House That Is Split Multiple Ways Is Rented, Passed or Sold at Death?

September 16, 2020

Filed under: Estate Planning — Laura Pennington @ 12:42 pm

If you have a loved one who is elderly and owns a house that no longer has a mortgage on it, it is important to look carefully at the deed to determine who has the rights to this home.

If, for example, an elderly loved one took money to pay taxes on the home from somebody else and added those parties to the deed, the proceeds should be divided equally among the parties who contributed towards the taxes as well as the homeowner. A key question is whether or not the people who have been added to the deed are tenants in common or own the property as joint tenants.

Upon the loved one’s death, the deceased individual’s interest will automatically disappear if the property was owned as joint tenants. If it was owned as tenants in common, the one-third interest for the primary owner will pass to the estate and will be distributed according to the will.

Real estate is one of the most challenging kinds of assets to move through probate. It’s imperative that you discuss your options directly with an attorney who is familiar with how to include these in your estate plan so that you know your next steps.

There are many complex issues involved in determining whether or not someone has an interest and a proper plan for what happens to their real estate property after they pass away. Schedule a consultation with a trusted estate planning lawyer to learn more. Our NJ estate planning law office can help with your real estate planning for probate and beyond.

 

What’s Included in an Elder Law Agreement?

September 15, 2020

Filed under: Estate Planning — Laura Pennington @ 2:03 pm

It is very common to sign an agreement or a contract with an attorney that you intend to work with and an elder law attorney is no different. Based on your initial consultation with this elder law attorney you will have a better sense of the services that would be provided and the process with which you expect to work with this person.

Each law firm’s engagement agreement is different and it’s a good idea to read through the specifics of your elder law agreement so that you understand the exact terms of the working arrangement. This includes planning options discussed and the next steps for moving forward.

This can also involve a fee quote for implementing the plan and the terms of payment arrangement, such as asking for half of the fee at the time this person is hired and the balance when the client returns. It can be very difficult to determine the scope of work for all elder law work agreements. This means that your elder law attorney might instead choose to charge by the hour and request a retainer. This can be different in litigation and probate matters as well, so you’ll want to be clear about the exact type of services for which you intend to retain an experienced attorney.

A knowledgeable lawyer will be able to use the information gleaned in the initial consultation to draft up a work agreement. You also have the right to read through this entire agreement and determine whether or not to sign it. Make sure that you ask all of your questions upfront before signing the agreement because it will be assumed that you have read this document and have made your decision to move forward based on it.

Market Returns Through a Century of Recessions

September 10, 2020

Filed under: Estate Planning — Raymund Rasco @ 4:50 pm

What does a century of economic cycles teach investors about investing? Our interactive exhibit examines how stocks have behaved during US economic downturns. Markets around the world have often rewarded investors even when economic activity has slowed. This is an important lesson on the forward-looking nature of markets, highlighting how current market prices reflect market participants’ collective expectations for the future.

1926—1927
A few years before the Depression, the US experienced a mild, yearlong recession accompanied by a minor bout of deflation. The stock market slipped 2.9% in the first month of the downturn.

Great Depression
The Depression decimated the US economy—unemployment climbed to 25.2%, and industrial production plunged 48.6%. Before the collapse ended, stocks collectively lost 83.6% in a 33-month market downturn.

1937—1938
A sharp, 13-month recession—marked by high unemployment and a big dip in industrial production—occurred in the midst of the nation’s recovery from the Depression. Stock market investors suffered a 49.2% loss.

World War II Recession
Industrial production plunged 26% during the eight-month recession near the end of World War II. But the stock market dipped only 3.9% early in the recession before rebounding.

1948—1949
A modest stock market slide (—11.0%) began five months before this relatively small economic

1953—1954
The Korean Armistice was signed in the summer of 1953. A stock market slump that had begun in March was over by August, but the recession continued until early 1954.

1957—1958
A huge drop in industrial production (–11.3%) and a contraction in GDP (–3%) interrupted the 1950s boom. Stocks retrenched 14.9% in the midst of a decade-long climb.

1960—1961
This four-month pause followed the previous decade’s bull market. In the election year of 1960, unemployment rose to 6.6%, and the stock market dropped 7.9%.

1969—1970
High inflation and a big jump in unemployment punctuated the 11-month recession that began in December 1969. A volatile

Oil Crisis
Inflation hit double digits during the 1973–75 recession. The stock market lost nearly half its value in the first 11 months of the 16-month economic downturn.

1980
A 12% stock market decline occurred early in 1980’s six-month recession, during which unemployment hit 7.6%. But the market finished the year with an impressive gain of 33.4%.

1981–1982
Historically high interest rates preceded a harsh recession that dragged on for 16 months and saw unemployment peak at 10.4%. The stock market experienced a 15.9% slide before beginning a long rally.

Gulf War
Stocks reacted negatively to the onset of the Gulf War in August 1990, dropping 17% over five months as the price of oil doubled. When the market regained its footing, stocks were set to start a nine-year bull market that peaked in the dot-com era.

Tech Boom and Bust
Many investors may not realize that the stock market had started a deep decline before the relatively mild

Global Financial Crisis
During the Global Financial Crisis, the worst of the 50.4% stock market dive happened in the latter half of an 18-month recession that saw unemployment hit 9.4% and industrial production tumble 17%. But after falling for 16 months, the market started a nearly 11-year bull run.

Sources: Dimensional Fund Advisors LP is an investment advisor registered with the Securities and Exchange Commission.

How to Make Assets Easier to Find for Your Executor?

September 8, 2020

Filed under: Executor — Laura Pennington @ 6:39 pm

The executor or the person appointed to administer your estate will have many different responsibilities in closing out your estate, such as paying taxes, notifying creditors and informing beneficiaries about any remaining assets that must be distributed. In order to start all of these processes, however, it is essential for your executor to be able to identify all of the assets that you currently own as well as any liabilities under your name.

This can be one of the most time consuming parts of the process for an executor and it is well worth your effort to do everything you can to make it easier for them to find all of your tangible property as well as other online accounts.

By creating a personal property inventory and storing it in a location in which it will be easy for the executor to  find or receive immediately after you pass away, you can make this process much easier for the executor and also ensure that all of your assets are properly tallied up in your estate inventory to be distributed among your beneficiaries.

Although you might have a mental calculation of all of these different assets, it’s important to have this written notice because no one other than you or potentially a spouse would be able to easily locate all of these property items and account access details.

You will greatly speed up the time for which probate is required in your case by leaving behind such an inventory of assets or even directions for your probate administrator to organize and inventory all of these. Schedule a consultation today with an estate planning lawyer to learn more.

 

 

Ins and Outs of Emerging Markets Investing: Market Behavior and Evolution

September 7, 2020

Filed under: Estate Planning — Raymund Rasco @ 4:21 pm

Emerging markets are an important part of a well-diversified global equity portfolio. However, recent history reminds us that they can be volatile and can perform differently than developed markets. In this article, we provide a longer historical perspective on the performance of emerging markets and the countries that constitute them. We also describe the emerging markets opportunity set and how it has evolved in recent years.

RECENT PERFORMANCE IN PERSPECTIVE

In recent years, the returns of emerging markets have lagged behind those of developed markets. As shown in Exhibit 1, over the past 10 years (2010–2019) the MSCI Emerging Markets Index (net div.) had an annualized compound return of 3.7%, compared to 5.3% for the MSCI World ex USA Index (net div.) and 13.6% for the S&P 500 Index. While recent returns have been disappointing, it is not uncommon to see extended periods when emerging markets perform differently than developed markets. For example, just looking back to the prior decade (2000–2009), emerging markets strongly outperformed developed markets, with the MSCI Emerging Markets Index (net div.) posting an annualized compound return of 9.8%, compared to 1.6% for the MSCI World ex USA Index and –0.95% for the S&P 500 Index.

The magnitude of the return differences from year to year can be large. For example, relative to the US, the biggest underperformance in the past 10 years was in 2013, when emerging markets underperformed by over 34 percentage points. Exhibit 2 helps to put this difference into historical context: between 1988 and 2019, emerging markets outperformed US stocks by 34 percentage points or more per year four times (1993, 1999, 2007, and 2009) and underperformed US stocks by that same magnitude four times (1995, 1997, 1998, and 2013).

Over the entire period from 1988 to 2019, investors with a consistent allocation to emerging markets were rewarded. The MSCI Emerging Markets Index (gross div.) had an
annualized return of 10.7% over this period. That exceeded the 5.9% annualized return for the MSCI World ex USA Index (gross div.) and was similar to the 10.8% average annualized return for the S&P 500, even when including the recent decade of strong performance of the US equity market. However, emerging markets returns were also more volatile. Looking at the same indices, the annualized standard deviation was higher for emerging markets: 22.4% vs. 14.1% for the US and 16.4% for developed markets outside the US. This higher volatility, as well as the potentially sizable performance deviation from developed markets, underscores the importance of patience, discipline, and an appropriate allocation that investors can stick with when considering investing in emerging markets.

A CLOSER LOOK AT EMERGING MARKETS COUNTRY PERFORMANCE

Diversification across emerging markets countries can improve the reliability of investment outcomes, as dispersion among country returns can be wide. Exhibit 3 displays individual emerging markets country returns by calendar year for the past two decades. Each country is represented by a different color, and countries are ranked each year from the highest to lowest performer. In the 20 years ended December 2019, no country had the worst-performing market for more than two consecutive years, and no country had the best-performing market in consecutive years. The illustration shows that country performance is volatile and that countries that rank low in one year may rank among the highest performers in the next year.

Focusing on the countries at the top and bottom of the columns for each year reveals substantial differences in returns between the best-performing and worst-performing market. Exhibit 4 shows that, over the past two decades, the annual return difference between the best- and worst-performing emerging markets has ranged from 39 percentage points in 2013 to 159 percentage points in 2005. On average, that difference has been approximately 80 percentage points per year. Perhaps somewhat counterintuitively, the extreme performers were not necessarily dominated by a handful of countries or by the smaller countries. In fact, 13 different countries were the worst annual performers, and similarly, 13 different countries were the best annual performers. These data illustrate the extreme outcomes that investors may be exposed to by concentrating in a few countries. There is no compelling evidence that investors can reliably add value through dynamic country allocation.1 By holding a broadly diversified portfolio, investors are instead well positioned to capture returns wherever they occur.

THE EVOLVING EMERGING MARKETS OPPORTUNITY SET

As a group, emerging markets represent a meaningful opportunity set for investors. The size and composition of the investible universe of emerging markets have steadily evolved since the late 1980s, when most comprehensive data sets and benchmarks for emerging markets begin. Over the years, major geopolitical, economic, and demographic changes have contributed to shifting weights for individual countries and companies within emerging markets, but in aggregate they have continued to grow. As of the end of 2019, the total free-float adjusted market capitalization of Dimensional’s emerging markets universe was $7.8 trillion and included 24 countries and over 7,000 securities. As shown in Panel A of Exhibit 5, emerging markets represented 12.5% of global markets’ free-float adjusted market capitalization. Measured by gross domestic product (GDP), emerging markets’ share increases to 38.0% (Panel B), reflecting the fact that emerging markets typically have smaller market capitalizations compared to GDP than most developed markets. Regardless of the metric, emerging markets represent a significant component of global markets.

Panel A of Exhibit 6 examines the country composition of Dimensional’s emerging markets universe. The top five countries in terms of market capitalization—Brazil, China, India, Korea, and Taiwan—represented 73.2% at the end of 2019, slightly higher than at the beginning of the decade, when these same five countries represented 68.8% of the universe. A more significant development over the past decade has been the rise in the weight of China, from 17.2% of the universe at the end of 2009 to 31.4% at the end of 2019. This increase has been driven primarily by new equity issuance and new avenues for foreign investors to gain exposure to Chinese companies, including securities listed on the local Shanghai and Shenzhen stock exchanges through Hong Kong stock connect programs.

In addition to changes in size and country composition, emerging markets have undergone important improvements in their market mechanisms and microstructures over the past decade. Generally, emerging markets have become more open to foreign investors with fewer constraints on capital mobility. Evidence of these developments includes fewer instances of market closings, capital lockups, and trading suspensions of individual stocks in many markets. Finally, emerging markets have broadly adopted international accounting and reporting practices over the last decade. Our analysis suggests more than 90% of the firms in most emerging markets now report their annual financial statements according to International Financial Reporting Standards (IFRS) or US Generally Accepted Accounting Practices (GAAP). In countries like China, India, and
Taiwan, the national standards have substantially converged with IFRS. This has helped improve the reliability and transparency of financial data in emerging markets.

SUMMARY

In sum, emerging markets represent a meaningful opportunity set within global markets. They continue to evolve in their structures, market mechanisms, and accessibility.
Investors in emerging markets can benefit from a long-term perspective, expertise and flexibility in navigating these changing markets, and an approach that emphasizes diversification and discipline.

Sources: Dimensional Fund Advisors LP is an investment advisor registered with the Securities and Exchange Commission.

When Something Just “Doesn’t Feel Right?”

September 3, 2020

Filed under: Estate Planning — Raymund Rasco @ 3:26 pm

“I don’t know…something just doesn’t feel right,” you mumble through your mask to your primary care doctor while sitting on the examination table under a flickering fluorescent light in a room decorated with anatomical charts and hand-sanitizer dispensers. After listening to your heart and your lungs, the doctor diagnoses your feelings of worry as a mild condition that is easily treatable but could become serious if a proper treatment regimen isn’t followed. The doctor gives two treatment plans: one coming from the New England Journal of Medicine and the other from a health magazine that can be purchased at your local convenience store. Which plan do you choose?

The health magazines are filled with tips and tricks, such as how to burn body fat, jump start the body’s metabolic rate and build immune system strength. And they might even work sometimes. If you want to choose the treatment plan with the highest odds of success, it might give you more confidence to know that the medical journal, and its recommendations, are based on decades of data collected from research studies performed by medical experts and peer-reviewed by the medical community.

We face the same decision when it comes to investing. Numerous publications tout the latest investment trends and implore their readers to jump on the bandwagon or miss out on the impending financial windfall. And to their credit—sometimes they work. But just like our physical health, we can place more confidence in an evidence-based approach to support our long-term investment plans and ultimately our financial well-being.

Evidence-based investing and evidence-based planning, the foundation of your financial life plan and our philosophy, is an approach guided by thoroughly vetted, peer-reviewed research and carried out by industry thought-leaders, academicians, and practitioners that is tested against decades of empirical data. We used this research to design your portfolio so that you can focus on today and know that your portfolio will be there to support your lifestyle in the future, regardless of what the pundits claim are the latest investment trends in the markets today.

The next time you find yourself questioning your financial well-being or if your portfolio “just doesn’t feel right,” look at what the evidence says. Are you giving yourself the best odds of long-term success?

When you have any questions about your investments, need to inform us of family or work-related changes, or want to discuss your financial planning needs, please reach out. We are ready to help.

How to Get Your Will Done Quickly

September 2, 2020

Filed under: Wills — Laura Pennington @ 12:00 pm

The pandemic has opened many people’s eyes to how unexpected health circumstances can change the scope of the foreseeable future for you and your family members. If you’ve been putting off creating a will, here are a couple of tips to finally get that important document done. First of all, think about who you are doing it for.

Yes, your will is your document determining you will pass on assets but it’s really your beneficiaries or your heirs who will ultimately benefit from the work you do in creating it. You are potentially saving your beneficiaries from expensive costs and delays of hiring a lawyer after the fact to try to sort out your estate. Even many people who have procrastinated on their estate planning can see the positive benefits of thinking about how it could serve your loved ones better in the future. If you’re finding yourself demotivated to approach it on your own, think about helping your family. Another way to jump into the act of creating your will is to visualize what might happen without it.

Thinking about worst-case scenarios can spur some people into action. Without an estate plan your family could wind up in court determining who takes care of your minor children. Furthermore, state law will determine who inherits your belongings and the distribution might not be the way that you intended for it to look. Avoiding these common challenges are big reasons why it is beneficial to schedule a consultation with an estate planning attorney.

Creating a will doesn’t have to be difficult or take a long time. Make sure that you have a list of all of your assets to the best of your knowledge before sitting down with your estate planning lawyer to talk through some of the aspects of creating your will.

An easy way to hold yourself accountable is to just set up a meeting with a lawyer. This step alone gives you a chance to get it on your calendar and off of a revolving to do list.

What Are the Downsides of Challenging a Will?

September 1, 2020

Filed under: Wills — Laura Pennington @ 12:52 pm

It might seem like an initial gut reaction to challenge a will that you don’t believe is in line with what a parent or other relative had told you prior to passing away. It is important to realize that there are circumstances in which you are legally eligible to challenge a will but this is not necessarily the same thing as knowing when it is appropriate to challenge a will. You could risk spending a lot of time and money for the result of being completely disinherited depending on the terms inside that will.

You may be eligible to challenge the will of a deceased person but the outcome of this case could be very uncertain. First of all, you must have a basis for the challenge.

You must show that there was something wrong about the conditions under which the will was made or something wrong with the will itself. For example, you might argue that the will doesn’t meet formal requirements, that the will maker created it under suspicious conditions or that the will maker didn’t have the legal capacity to create a will. You could argue undue influence, fraud or mistake, lack of capacity or a flaw in document requirements.

Challenges are handled in probate and each state has unique laws about the procedures for a will challenge and these can even vary from one county to another. If you challenge a will that contains a section known as a no contest clause, you could risk losing any inheritance that would have otherwise been available to you through the will.

Plenty of wills contain such a no contest clause which means that anyone who attempts to file a will challenge could be completely disinherited. Schedule a consultation with an estate planning lawyer if you are curious about adding a no-contest clause to your own will.