Adding children or other persons as joint owners to assets creates unintended risks, because by doing so, the true owner gives up control of the property.   For example, if you add a child as a joint owner (with right of survivorship) by signing a deed to that effect for your home, your child may have the ability to prevent you from selling or even obtaining a loan on the property.   I have seen children refuse to cooperate with the refinance process.  I have also been involved with situations where the child has filed for bankruptcy or divorce, and the parents are left fighting to prove ownership of their own property.

A common solution for clients wishing to avoid probate (and not create the risks associated with joint ownership of assets described above) is to create a living trust.  Living trusts have many benefits other than to avoid probate upon death, but they have also been the primary solution for my clients who would otherwise “add” a child to the title of their assets. 

On January 1, 2012, a new Oregon law came into effect– Senate Bill 815, known as the Uniform Real Property Transfer on Death Act.  This new law allows for the transfer of real property to a named beneficiary upon death.   This probate avoidance mechanism is commonly used with a bank accounts, by naming a "payable on death" beneficiary with the financial institution. 

Streich Law Offices, P.C. prepared and recorded the first TODD (Transfer on Death Deed) in Curry County earlier this year.  

While the TODD can accomplish the goal of avoiding a probate proceeding by transferring real property after death, it is not a cure-all solution, and the TODD has its own dangers.   The law has rules and restrictions on who can be named as a beneficiary, for example.

The following are some other potential hazards of the TODD:

  *Creditors and challengers to the TODD (for reasons of incapacity, fraud, or undue influence) are able to present claims 18 months after the owner’s death to set aside the TODD (as compared to 4 months after publication in a probate proceeding). As a result, the property may be difficult to sell or transfer to a bona fide purchaser for a period of 18 months following the owner’s death; 

  *It is not known whether lenders will be willing to waive a “due-on-sale” provision in a trust deed and allow a transfer under a TODD.   Therefore, extra caution is required if you currently have a loan secured by the real property subject to the deed, or if you intend to obtain a loan secured by the real property;

  * If there are multiple grantees, huge problems can arise if they do not get along and have the same goals for the property, or if any grantees have creditor or divorce problems;

   * You may not specify any personal goals for the future of the property in the deed;

   * You must validly execute a new instrument to revoke the Transfer on Death Deed, which must be recorded;

   * If there are joint grantors (such as Husband and Wife), a surviving grantor may revoke the deed after the other has died, which may be inconsistent with the deceased grantor's wishes and intentions.

As always, the key to an effective estate plan is to seek competent legal advice.  No one should attempt to determine if the TODD is the right tool for them without the advice of an attorney.

HR 822, passed by the House and now stalled in the Senate, would require states to do just that: it requires reciprocity between all states issuing concealed carry permits. According to the NRA, “The bill ENHANCES Americans' right to self-defense by enabling millions of permit holders to exercise their right to self-defense while traveling outside their home states.” 

However, anti gun groups, such as the Brady Campaign, refer to the bill as “so extreme it would allow dangerous, violent, and untrained people from out-of-state to carry loaded guns in your community, and your state would be powerless to stop them”.  Not a single state which issues concealed carry permits issues them to known dangerous, violent and untrained people.  In fact, applicants in every state issuing permits must apply through a law enforcement agency, undergo a background check, and often, complete firearms training.

If passed, HR 822 will negate the current system of cumbersome and unnecessary state restrictions, which system provides that permits by some states are accepted by some, but not all, other states.  In addition, not all states issue permits to non-residents.  The result is that it can be extremely difficult or even impossible to obtain a permit in a state in which you wish to travel.

To glimpse the current system, visit http://www.usacarry.com.  The site allows visitors to populate a map and review state laws to check the legality of carrying concealed in a state other than the state issuing a permit.    

Unfortunately, populating a map like the one on USA Carry’s site is essential for traveling gun owners, to ensure compliance with state law and thereby avoiding inadvertent criminal activity. 

Take, for example, my most recent travel:   from Gold Beach, Oregon, to Seattle, Washington, to Boise, Idaho, and back to Oregon.   I frequently travel between my current office location in Oregon to my new Boise, Idaho office.   Because I obtained a valid Oregon concealed carry permit, issued by the Curry County Sheriff in Gold Beach, I can legally carry my concealed weapon anywhere within the confines of the State of Oregon. 

However, if I travel outside Oregon, the state to which I am traveling must either 1) specifically permit me to carry concealed under my Oregon license (16 states), or 2) allow me, as a non-resident, to obtain a permit (note that while 18 states have laws that “shall” issue permits to non-residents, some of these states impose restrictions other than merely passing a background check and completing firearms training, such as Oregon’s requirement that the applicant have legitimate business reasons or show other compelling reasons).  If my intended state’s laws do not allow for either option, then I cannot legally carry my weapon concealed the moment I cross into that state.  

And so, when traveling from Oregon to Idaho, I legally carry my weapon across state lines because Idaho recognizes my Oregon concealed carry permit and allows me full rights and privileges in Idaho. However, Washington law does not recognize my Oregon permit.  If I kept my concealed weapon on my person (as usual) after crossing the Columbia River from Oregon to Washington on Interstate 5, I would be committing a crime and face arrest, jail, fines, and, the loss of my right to carry or possibly even possess a weapon. 

On my recent trip to Seattle (where, as a side note, my ex-husband who was convicted of strangling me resides) to visit my fellow Northwest Gun Law Group lawyers, I therefore removed my concealed carry weapon from my person and rendered it inoperable and inaccessible to comply with Washington law. 

Note, however, that if I resided in Idaho (by having an Idaho driver’s license instead of an Oregon driver’s license), and had obtained an Idaho concealed carry permit, I would not be able to travel to Oregon without also obtaining an Oregon concealed carry permit.  Further complicating the matter for Idaho residents is that each Oregon county imposes different restrictions on non-residents who wish to apply to carry concealed. 

This situation is best illustrated by another example.  A gun owner living in Idaho, but whose work requires him to frequently travel to Oregon, was told he could not obtain a permit in Curry County, which he frequents, unless he owns or leases property there, or he is employed there in a manner that requires him to transport cash in that county. 

He then turned to the sheriff of Malheur County where he regularly works, but the Malheur County Sheriff had yet a different imposition on applicants:  a non-resident must reside in a neighboring county directly adjacent to the Oregon county issuing the permit (which he does not).  So, this person was turned down for a concealed carry permit in the two Oregon counties where he frequently travels. 

However, the sheriff in an unrelated Oregon county, which county this Idaho permit holder almost never visits, routinely allows non-residents to obtain a concealed carry permit, which is where he was finally able to obtain a permit.  

This gun owner now has permits from three different states so he can lawfully carry his weapon while visiting a few of his neighboring states.  Instead of obtaining a Washington permit, he obtained a Utah permit, because research revealed that Utah’s carry permit is honored by more states than Washington’s permit, and in addition, Utah’s permit will allow him to carry concealed in the State of Washington, unlike the Idaho and Oregon permits.

Sound complicated?  It is, in a phrase, superfluous flummery.

The logic behind HR 822 is simple:  you’re either a law-abiding citizen, or you aren’t.  If you are (as proven by a background check) and you understand how to properly secure and use your weapon (as proven by completion of firearms safety course), then you should be allowed to obtain a permit in your home state, and that permit should be honored by other states which also allow residents to carry concealed weapons.

HR 822 will address the unnecessary imposition of significant criminal penalties on law abiding citizens for merely doing in one state as they have been permitted to do in another.  Support the bill by contacting your U.S. Senators.

Legal Bytes^TM

Introducing Legal Vault

Once you have a solid estate plan in place, an important follow-up step is making sure that your loved ones (and any treating physicians) are aware that you have completed an estate plan.

So, how do you make sure that the appropriate people are contacted if you are unable to make your own health care decisions? Many people simply keep a copy of the Health Care Directive in their vehicle or purse, and provide copies to their agents. But this does not inform any hospital, if they are traveling, that they have a plan in place. You could also provide your regular treating physicians, as well as your local hospitals, with a copy of your Advance Health Care Directive; but, again, this does not provide security if you are traveling and wind up in an unfamiliar hospital.

We are pleased to introduce you to Legal Vault.  Regardless of where you are, Legal Vault allows you to have your Health Care Directive and emergency medical information at your fingertips. In the event that you require immediate medical care (especially when being treated at an unfamiliar hospital), you or your loved ones can simply present the attending physician with your Legal Vault wallet card. This card lists allergies, emergency contact information, and instructions on how to obtain all health care directives. Through our website, hospital personnel will have access to your Legal Vault account, allowing them to view your health care documents.

By providing care givers access to your vital medical information, you can help prevent hospital errors. Legal Vault is a secure document storage site with safeguards to prevent unauthorized access to your private documents.

In addition to storing health care directives and emergency medical information, Legal Vault gives you the option to store your most important documents for easy and secure retrieval anywhere, and at any time. All that you need is access to a computer with an internet connection to securely view all of your stored documents in one convenient location.

Having the Legal Vault wallet card with your attorney’s contact information and website, and the security and privacy of Legal Vault’s system, is superior to attempting to provide loved ones and hospitals with paper copies of your Oregon Advance Healthcare Directive and HIPAA Release forms. Membership in our Legal Vault program insures that your documents are available if, and when, you ever need them.

This column is designed for general information only.  The information presented in Legal Bytes^TM should not be construed to be formal legal advice nor the formation of an attorney/client relationship.  If you have legal questions, you should consult with an attorney.

              To leave instructions, you can complete a formal directive regarding the disposition of your remains, leave instructions in your Last Will and Testament, or simply leave a statement of desires on file with your local funeral home.

              If you fail to leave a statement regarding your preferences, family members be uncertain of your wishes and even overspend, feeling that it is necessary to spend as much as possible for the best funeral or casket.  Another reason to plan for your disposition ahead of time is to avoid conflicts between family members. In Oregon, state law imposes an order of preference in the event that your loved ones do not agree.   The law’s choice for a decision-maker may conflict with your preference.

               If you are inclined to explore your options and leave some direction for your family members, read on!  The options available today go well beyond the standard burial or cremation.

               For example, as awareness of environmental issues rises, many people  consider the common burial’s effect on the environment and choose a “green funeral”.  A green funeral might consist of foregoing an embalming, choosing a casket made from environmentally sustainable materials, and interring remains in a natural cemetery.

   Many Oregon Coast residents love where they live, and request either a burial at sea or that their loved ones scatter their ashes in the ocean.  These options are legal in Oregon, but keep in mind that if you wish for your cremains (cremated remains) to be spread in the ocean, the location must comply with federal law.

   Oregon law allows your loved ones to care for your remains in the home, and our laws do not specifically prevent your family from burying you in your own backyard.  However, because a number of requirements must be met, you should consult with a lawyer before requesting this plan.

   Different from, but similar to, cremation, a new technique developed by a Swedish company involves flash freezing the body and the use of sound vibrations to break it into tiny pieces similar to cremated remains.

               Some more unusual options include:   Life Gem and Gem Smart market a process that creates diamonds from  cremains, an Atlanta based eternal reef company offers to mix your loved one’s cremains into an environmentally friendly concrete reef sunk in the ocean, to act as a backbone of a reconstructed coral reef, and Space Services Inc., will blast cremains into space (the remains will orbit the earth for a set period of time and before reentering the atmosphere, burning up).  Further information regarding any of these options is available on-line.

             But what happens if something happens to me? How can I ensure that my pets would continue to receive proper care if I were unable to provide it myself?

             The sad reality is that unless I make the appropriate arrangements, my pets could be euthanized in a shelter or a veterinary office if I die or become incapacitated. According to one estimate, a half million pets are euthanized in shelters each year because their human caregivers predeceased them.  

             My clients include pet owners who love their animals and want to make sure their pets will receive proper care should tragedy strike. 

             So, how can we provide for the continued care of our pets?  Most people do nothing. They do not think about planning for their pets. They think about leaving a wedding ring to their daughter, or work tools to their son, and they assume that their kids will take care of their animals.  Sometimes, a child may desire to care for the pet, but is for some reason unable.

             To prevent any question about your pet’s care in the event of your death or incapacity, Streich Law Offices, P.C. prepares special trusts, just for your pets.   The “pet trust” accomplishes two important objectives:   1)   It names a designated caregiver for your pets.   In other words, the  trust names the person or entity you wish to care for your pet for the rest of its life.   The pet caregiver can be a person, a rescue society, or another placement organization  you trust to find a good home for your pet.  2)  The trust creates a mechanism to pay for your pet’s care.  In other words, through the trust, you may leave a sum of money to provide necessities for your pet. The amount you leave should be sufficient to cover the cost of food, toys, and medical care.   You may also leave a payment plan for your caregiver, to thank the person or organization for taking care of your pet.

             Clients often wonder how much money should be gifted to their pet trust. There is no magic amount or formula.  We often recommend that our clients calculate a minimum amount by keeping track of their actual pet costs for a couple of months.  A projected sum can then be set, either as the amount necessary to cover the projected cost of care for the pet’s lifetime, or an amount which would allow the investment income to cover the monthly costs. When the pet dies, the remaining funds in the trust can go to any designated person or organization.   The remaining balance does not have to go to the caregiver.  Keep in mind that it is not necessary that your caregiver and the trustee (manager) of the pet trust be the same person.  One person may be an animal lover and provide the best home for your pet, but that person may not necessarily be the best person to manage money on behalf of your pet.  It is sometimes better to remove the temptation to abuse the management of the cash meant to care for your pets by designating a separate trustee.

             Do you really need a pet trust?  Why not just name a person in your will to care for your pet?  If you decide to simply leave your pet and a gift of cash directly to a designated person through your will, consider that nothing mandates that the person use the cash gift to care for your pet.  In contrast, a trust requires that the cash only be used for its designated purpose and, equally as important, the trust allows you to outline how the caregiver is to provide the care: your trust names your choice of veterinarian, your choice of food, your choice of shampoo and groomer, etc.

             As part of our Pet Trust Program, our clients receive a planning guide for their designated caregiver, which outlines detailed information about the pet.

             Oregon law has specific provisions governing pet trusts. A knowledgeable estate planning attorney can assist you in properly drafting a trust to care for your pets. 

An experienced elder law attorney can help you determine if you may be eligible for such protection, complete the required application for a restraining order, report the abuse to law enforcement, and make sure that your rights are protected. An elder law attorney can also assist you by filing a complaint for elder abuse to recover property taken from you or to request damages related to the abuse. If your request for a restraining order is contested (meaning the abuser asks for a hearing), an elder law attorney will present your case to the judge by questioning witnesses, presenting other evidence such as photographs or documents, and making legal arguments on your behalf.

The Elder Abuse Restraining Order packet is available from the court clerk at your local courthouse. The packet describes the requirements for obtaining a restraining order. Make sure you qualify for a restraining order by reading the eligibility requirements. The packet also includes the forms you must complete to request a hearing. If you do not have an attorney to help you complete the packet, you may be able to obtain help by contacting your District Attorney Victim Assistance Office. If you are completing the forms on your own, be sure to read the instructions carefully, and complete the forms as instructed. If you make a mistake, you may not be able to obtain the restraining order. Once you have reviewed and completed the forms, you must file them with the court clerk. There is no fee to file the petition. The clerk will then set a hearing date for you to appear before the judge.

When you file a petition for a restraining order, the court is required to hear your request on the day the papers are filed or on the next day the court is open for business. If the judge decides that you are eligible for a restraining order, the court will issue the order. The order must be served on the person who abused you. Service is usually accomplished by the court clerk delivering a copy of the restraining order to the Sheriff and requesting that the order be served. Check with the court clerk if you are unsure of the procedure in your area. The order will be in effect for one year.

After the abuser has been served with a copy of the restraining order, he or she may request a hearing. The abuser may present evidence at the hearing, and may even hire a lawyer to present their side of the story. You should strongly consider hiring an elder law attorney at this stage if you have not done so already. Not all abusers request a hearing; however, if such a hearing is requested in your case, you must appear and present your case as well, or the judge may change or cancel the restraining order based on the evidence presented at this second hearing.

If the abuser violates any provision of the restraining order, you should contact law enforcement immediately and report the behavior. Violation of a restraining order can result in the abuser being arrested, charged with contempt of court, and punished by jail time and a fine.

Some families simply find it hard to communicate. For others, well-meaning children and parents simply do not agree on the best course of action. Parents can feel like children are trying to move in and control their lives or take their freedom away prematurely. Other times children do, in fact, unnecessarily attempt to remove a parent’s freedom. Disagreements lead to suspicion. Suspicion or distrust can lead to anger and sever the channels of communication between family members.

A neutral, third party may be able to help repair the damage and help the family members discuss their goals, their concerns, and reach an agreement about the best course of action.  A practitioner experienced in elder mediation is a perfect choice for solving disagreements due to issues with the elderly.

Mediation is a non-adversarial approach to resolving disputes. Mediation is a non-binding process, where parties with a disagreement can mutually negotiate a solution to a problem. A judge does not render a decision. The mediator simply talks to the parties involved, often times separately as well as together. An elder mediator is skilled in the art of negotiating resolutions between elderly parents and family members.  Such an expert can often give the family a perspective it cannot gain on their own, and the expert should be able to provide creative solutions to the families’ concerns.

A skilled elder mediator may also invite additional experts, such as care managers, to a meeting to help educate family members and give them a new perspective. All parties involved through the mediation process should learn and consider options not previously contemplated, and parents should be able to freely express their wishes and desires.

Mediation often results in a written plan with specific responsibilities for each family member.

Persons interested in finding an elder mediator may search for an elder law attorney at www.NAELA.com, contact their state bar association, search a local phone book, or otherwise search the internet for mediation in their specific area.