In this important session, estate planning attorney Kurt Walberg walks families through essential estate planning steps that can bring peace of mind when navigating life with familial Alzheimer's disease FAD. From medical powers of attorney to wills and trusts, this talk covers the tools you need to ensure your wishes are honored — even in the face of uncertainty.
Whether you’ve tested positive for a genetic mutation or are supporting a loved one who has, this video will help you understand what legal documents to have in place, how to make thoughtful decisions, and how to plan proactively for the future.
MARTY: I wanna welcome everybody and thank you for being here. I'm Marty Reiswig, co-founder of Youngtimers. Today's workshop is an important one for families navigating the challenges of EOFAD. We know that planning for the future can feel overwhelming, but having a solid legal plan in place can really provide clarity and peace of mind, and that's why we brought in an expert to guide us through it.
That's Kurt Walberg. He's here today. Kurt is an estate planning attorney with extensive experience helping families plan for the unexpected. He specializes in creating legal structures that protect assets, ensure wishes are honored, and help families avoid unnecessary legal and financial stress.
His firm Front Range Estate Planning has helped many families, including my own, in complex situations like these. So today, Kurt's gonna walk us through key estate planning considerations, answer your questions, and help you understand the steps you can take to protect your loved ones and yourselves.
Before we dive in though, I want to quickly clarify something. Estate planning versus financial planning. Financial planning, which is what we're not doing today, is about growing and managing your wealth-- things like investments and savings and retirement accounts.
Estate planning is about making sure that your assets, your medical decisions, and legal affairs are handled according to your wishes if you become incapacitated or pass away. So today, we're only focusing on estate planning, which is how to legally protect your family and ensure your wishes are carried out in the future.
So all of that said, Kurt, take it away!
KURT: I'll take it away. Thanks for inviting me to speak. Little background on me and then the Colorado disclaimer. I've been practicing law for over 42 years, almost 43 in Colorado, and my focus has changed. In 2015, I said, I'm gonna help people with their estate plans full-time. That's all I'm gonna be doing. There are good and adequate personal and professional reasons for me doing that.
And one of those is that in the previous work that I did, personal injury and insurance defense, I was cleaning up messes. When I'm helping people get their estate plans done, I am preventing, hopefully, or minimizing messes. And that squares with my value system and just how I am as a person.
Colorado disclaimer: everything I say, while in all likelihood, generalizable to any state... I'm licensed only in Colorado, so any comments that I make are based on Colorado law, and if you're in another state, check with a licensed professional in that state and don't rely on what I say. It's going to be generally accurate, but make sure that your plan will work for you by working with a lawyer in your jurisdiction, your state.
When I meet with people, the initial meeting that I have with people generally goes that one, I wanna hear their goals, questions, concerns. Then, I ask nosy questions about their loved ones and their finances. After that, once I've gotten clear on the goals, questions, and concerns and their situation, I'm in a position to make a recommendation for the estate plan, which comprises two parts.
Power of attorney, for cases in which a living person is unable to act for themselves
KURT: Part one is a plan for if someone becomes unable to act for themselves. Disability planning and whenever you hear the three words, "power of attorney", what that means is, during my life. So any document that says "General durable" or "financial power of attorney", or that says "medical power of attorney" is instructions and appointing of an agent for someone to act during that person's life, okay?
So that's one of the boxes that I help people with in estate planning. Powers of attorney equal during my life. Subcategories of powers of attorney are are medical durable power of attorney. Who do I want to make medical decisions if I get to a point where I can't?
The second kind of power of attorney is general durable or financial power of attorney, and that answers the question: who do I want to make financial decisions for me? Who do I wanna manage the finances if I get to a point where I can't do that? And you know, there are state-approved forms in virtually every jurisdiction as well as custom forms that can be prepared by a lawyer.
What do you wanna do? I'm gonna stick with the disability part of the estate planning right now.
Selecting a medical power of attorney
KURT: Who do you wanna appoint as your medical agent or your medical power of attorney? Just some guidelines. This should be somebody who knows you, who knows what your desires for care are,
if you become unable to act on your own behalf. Could be a family member, could be a friend. There are also professional fiduciaries who would take on that kind of a role, if there's no close friend or immediate family that you judge is qualified to make those decisions on your behalf, okay?
Sometimes people give a lot of thought to those kind of decisions, and it deserves some careful thought. But I will urge everybody on the call, and I always urge my clients, don't let the perfect be the enemy of the good. Make your best decision about who you want to make those medical decisions for you if you're unable to.
And if you change your mind along the way, you can revise. End that medical POA and do another one.
Who should have a copy of your medical durable power of attorney?
KURT: Who should have a copy of your medical durable power of attorney? Your primary doctor or primary care provider should have a copy of the medical durable power of attorney.
Why is that important? If they know about it, then they will follow those wishes. If it is just stored in your fireproof box or in a file cabinet somewhere, they may not honor your wishes if the situation comes up. So primary doctor gets the copy, any specialist that you see with frequency gets a copy, and your agent should have a copy.
By the way, you need to talk with your agent and ask them if they're willing to serve, and then have some conversations about what your desires for medical care would be, in general terms. We're not able always to predict what the future will hold, so best to have in, general terms, a conversation with your trusted medical power of attorney.
Who should be my general durable power of attorney?
KURT: The next power of attorney, and we're still in the disability box, so to speak, is financial power of attorney or general durable power of attorney. "General durable" means this is effective, whether or not I'm incapacitated, okay? And the general durable power of attorney, who you wanna be your agent on that, is somebody whom you trust-- I'm gonna emphasize that a few times-- and who's good with money, and who has your best interests at heart? Again, often people when they're appointing an agent under a general durable power of attorney, say, I want a family member to do that, or a trusted friend. And again, there are also professional fiduciaries who would be willing for a fee to step in and manage those things.
There are situations where people are like, gosh, this family member would not be qualified to do the job. And if that's the case, make your best judgment about who should do it based on the information that you have at the time. Again, general durable power of attorney can be terminated or revised at will. They're in paper. They're not on stone tablets. So just make your best decision for that with the information that you have.
The 'original advance directive' or 'living will'
KURT: Next, there's an outlier of estate planning documents.
It's the original advance directive. And the original advance directive is the living will. It's a misnomer. A living will has nothing to do with living, and it's not a will. Otherwise, the title is perfectly good, right? It's more accurately thought of as an end of life declaration.
So it comes into effect in very limited circumstances. One is, I am unable to receive or convey information. Two is, that my doctor and three, another doctor, have said, I'm not long for this world; I'm about to die. In that very limited circumstance, end of life declaration says, "here's what I want in terms of life sustaining treatment."
If I have a terminal condition, here's what I want in terms of artificial nourishment, and here's what I want in terms of life sustaining treatment and artificial nourishment and hydration if I am in a "persistent vegetative state". That's a term of art and it's a developing term of art, but current medical knowledge says "persistent vegetative state" means no apparent brain activity for something in excess of a year.
So circling back around to the end of life declaration, which is commonly called a living will, those are your statement of desires for medical treatment, life sustaining treatment, and artificial nourishment and hydration if you are in that situation.
MOST, POST, or POLST Forms
KURT: KURT: Everybody here probably knows, doctors speak to God. Doctors are right next to God, and then all us lesser mortals get to follow those doctor's instructions, or at least think about what they say there. In Colorado, there's a MOST form, okay? MOST is an abbreviation for Medical Orders for Scope of Treatment.
This is a document that's portable and it's doctor's orders- medical "orders" for scope of treatment. What does that mean? That means that you have gone to your doctor and said, you know what? I heard about this Medical Orders for Scope of Treatment. Some states call 'em POLST-- Physicians Orders for Life Saving Treatment.
Some call 'em POST forms. If you say MOST, POST or POLST, and you say, gosh, I would like to complete that form, the doctor is supposed to go along with you and go over your desires for medical treatment if certain conditions arise, and then after the doctor signs it, the doctor will give it back to you.
And I always pick on my mom, whom I fondly called Granny. She passed away at age 94. She had her MOST form, which was bright green, right on the refrigerator of her independent living facility room kitchen. That way, if anything did come up, the emergency medical technicians, the EMTs, and the like, they're supposed to say, "Hey, do you have advanced directives?"
Because that will help guide care. And if they know about 'em ,because it's on the refrigerator door, then those desires will be observed. So going back to the theme of make sure the people that need to know about these forms know about 'em and that they're accessible. Okay, I am gonna put a bow on the box that's called disability planning.
Death planning documents: wills and trusts
KURT: The next little box that we're going to open, and I'm going to talk hopefully fairly briefly about it, is the death planning. What is death planning? What are those documents? The two documents that you'll hear about in terms of death planning are trusts and wills. Both of them accomplish the same thing.
They say, here's what I wanna have happen to my stuff when I die, and here's who I wanna follow my instructions. In a will, the person that's following the instructions is the personal representative, also known as executor, also known as PR, so whenever you hear those three words, they're synonymous.
That's the person that's following the instructions in the will, okay? In the trust, the person that follows the instructions is the trustee, and again, those people are simply in charge of following the instructions, okay? For wills, the beneficiaries or heirs are the people that receive under the terms of the will.
Sometimes, as in California and some other states, the probate system, meaning the court part of a state administration, is punitive. It costs a lot, it involves lawyers, takes a long time. In states where the probate laws are punitive, such as California, anybody that owns a home should have a trust, and the home should be funded into the trust.
The reason being, if you can avoid probate administration in California, you're way ahead of the game. Colorado, not so much. Colorado does not have as punitive a probate system, so sometimes people are like, "yeah, I wanna keep it simple. I'll just do a will." And there are ways of managing that so that the administration of the estate is simple.
Those are very situation-specific, and that's why I will heartily recommend you talking with a lawyer in your jurisdiction to find out what will best serve you and your loved ones in the event somebody dies. Trusts can also be a very powerful tool for administering assets of somebody who's become disabled, because a successor trustee-- again, that person could be a loved one, a trusted family member, or a professional-- well, that person can administer the assets of the trust for the benefit of the disabled beneficiary. So the trust can play in harmony with the financial power of attorney. If assets are in the trust, the trustee would say, "okay, I'm going to use these trusts for the benefit of the disabled beneficiary."
There would be less involvement-- virtually no involvement --of the courts and reduced possibility of confusion, so to speak.
Medicaid qualifying trusts
KURT: There are ways of funding an "irrevocable" trust and creating a "Medicaid" trust, which would have the effect of moving assets from countable for Medicaid purposes to not being counted for Medicaid qualifying purposes. That would be Medicaid long-term care benefits, and if you did a Medicaid trust, that would have the effect of preserving assets that got into the trust in a good way for the benefit of your loved ones, the people you wanna get it, as opposed to for the benefit of the people that are in the nursing home or social security, Medicaid.
Those trusts are complicated, and frankly, those are not in my wheelhouse. I often cover that topic with people as they're doing their planning. If somebody is like, "yeah, I need to know more about these Medicaid qualifying trusts," then I have trusted lawyers that I know do a good job on that kind of thing.
If you want to investigate a Medicaid qualifying trust in your state, please make sure that whoever you visit with has the chops to do it in a good way, because it's a pretty sophisticated estate planning tool. It becomes less of an issue when there's a spouse likely to be able to be a successor trustee or current trustee.
Beneficiary designations
KURT: Gosh. I expect I have left something out. Oh! Beneficiary designations, right? A lot of times, people do estate planning, and the lawyer doesn't necessarily say anything about beneficiary designations on life insurance policy, on brokerage accounts, on IRAs. It's very important to double check those beneficiary designations to make sure that if you were to pass away, those assets go to the people you want 'em to go to.
Trusts for the benefit of kids under 18
KURT: If you have kids that are not of age yet, those are useful for planning purposes as well, but you need to make sure you say, gosh, if my spouse predeceases me, I want this to go to my kids, but they're under 18, so I need to put some special language in to make sure it goes into trust for the benefit of the kids. So I did, that's an area that I didn't touch on at all.
Gosh, what happens if I have kids? They are not in their majority, they haven't hit 18 yet, and I die. That's where a trust comes in-- either a trust inside of a will - a testamentary trust -or a formal trust that says, whoever's looking after this money for the benefit of my kids, has this discretion to spend money on behalf of the kids, and then when the kids hit a certain age, there can be distributions made of the principle, the main amount of it.
Why do estate planning now?
KURT: Okay. Why is it important to do the estate planning now? I remember an old rock and roll song that said, better to have and don't need than need, and don't have. An estate plan or a power of attorney is effective if whoever signed it had legal capacity when they signed it, meaning you have to know what you're doing when you're signing your power of attorney, your medical power of attorney, your will, or your trust.
If you get on the other side of knowing what you're doing, then it would be necessary to go to court, get a guardian / conservator appointed, and have it managed with judicial oversight, which adds layers of complication that most everybody I know says, "I don't wanna subject me or my loved ones to that."
So that's why, if you're thinking about this, if you're on this call right now, gosh, go ahead and take the next steps to get it completed, so that if something comes up, or when something comes up, the plan will be in place. Again, make your best decisions with the information that you have as opposed to trying to make the perfect decision.
I'm a bit of a perfectionist, so I've had to get over that one. Let's just make our best decisions.
Recapping insights so far
MARTY: Yeah, that's great. That was a fabulous overview. Thank you so much for the advice. I want to fill in a couple of gaps in my notes, if that's all right?
Sure. So you said a lot, and I don't want to try to recap all of it, but the main documents that I think I captured were a medical power of attorney, which is your care wishes.
KURT: Yes.
MARTY: Get a copy to your agent, your fire safe box at your house and your primary care physician
KURT: and any specialist that you see with frequency,
MARTY: Like in our case, maybe a neurologist.
Okay. And then so medical power of attorney, the durable power of attorney. Yes. Which I think handles financial and property? Correct. And then advance directive, which is like a living will / end of life declaration. And then you said to, I thought this was fascinating, to reach out to your primary care physician and ask them to do a MOST, POST, or POLST document with them.
KURT: Medical Orders for Scope of Treatment or Physician's Orders for Scope of Treatment. Essentially what that is, it's a DNR on steroids. It covers a wide range of situations.
MARTY: Yeah, I know. For my father, one of his big hangups-- he watched his father stay plugged into medical devices for a very long time, and he was fed through a tube, and that's what kept him alive. And while it seemed a little bit harsh to me, my dad basically made a "do not feed."
He just didn't wanna be fed.
KURT: That would, that would be covered in the MOST, POST, or POLST form.
MARTY: Yeah. Yeah. I thought that was an interesting insight on his part, that was just a desire. He just said, at the end of the day, if I can't eat or drink and I'm that far gone with Alzheimer's.
I just wanna let, you know, just let me go. So I thought that was so we did have those in his finance, in his wishes. And then I've got ...
KURT: What the acronym stands for in Colorado, it's Medical Orders for Scope of Treatment.
MARTY: Got it. Perfect.
KURT: In other jurisdictions, it might be Physicians Orders for Scope of Treatment or Physician's Orders for Scope of Life Treatment - POLST.
MARTY: Got it.
KURT: And it, it's a sort of a cute acronym, but it's fairly easy to remember. So roll with it.
MARTY: Yeah. And it seems to give us a nice segue into the death planning section, which you've got trusts and wills, which kind of accomplish the same thing, but the will has executors, personal representative or what?
KURT: Just PR.
MARTY: Just PR.
KURT: Yeah.
MARTY: And they're in charge of attorney shorthand instructions?
KURT: Yes.
MARTY: And why have a will if you already have a durable power of attorney?
KURT: Well, a will is in the death box. Powers of attorney are in the disability box.
MARTY: Okay, got it. But still handles assets and personal property and...
KURT: Right. A will or a trust is saying, here's where I want my stuff to go when I die.
MARTY: Okay, so
KURT: Here's who's in charge of following these instructions.
MARTY: Yeah. With heartbeat and without heartbeat. Alright, so trust...
KURT: That's one way of putting it.
MARTY: And thank you for defining beneficiaries and reminding us to get those on there for all of our life insurance policies, brokerage accounts, and IRAs. And I think that was pretty much it.
Wills, trusts, Medicaid, qualifying trust, which is interesting. I would like to get a referral for you on that. That's fascinating. And then why to do it now. So I think you covered a lot of good bases.
Where to keep estate planning documents
KURT: Hey, where is there a good place to store all this stuff? Where should it be so the family members know about it? It is mission critical to sit with your family and loved ones and say, "Hey here's where my stuff is, here's what my desires are."
There are a number of resources out there to help assist in those conversations. Ellen Goodman has --there's a website called The Conversation Project, which gives a lot of good prompts for people that are having tough conversations.
That's great. Many people have heard of the Five Wishes document.
That's also a great conversation starter. I do not recommend using the Five Wishes document. Medical Power of Attorney, Living Will are completely adequate. If you do the Five Wishes document. It's complicated so you may build in some potential contradictions or confusion. And because it's a little complicated, it takes a while to do, you may end up like my partner Rita's parents, who probably got out their Five Wishes document and I started leafing through it and they've never gotten around to signing it. If you don't sign it, it's not effective. I'm picking on 'em very gently. I love both of them dearly, but
MARTY: Yeah. That's great. Okay. Super.
KURT: So those are both good conversation starters. Again, making sure that your loved ones know where the documents are, and know what your desires are, and you've been clear with all of 'em. That'll simplify things for people downstream.
MARTY: Do you have a recommendation of actually where to keep those documents?
KURT: So definitely not in a safe deposit box. If you have a fireproof box, if you have just a file cabinet where you keep all your other financial stuff... it is useful because the Will, Trust, and Powers of Attorney... those don't list all your stuff.
They're just instructions, right? So if you've got a bunch of different brokerage accounts with different brokers and several different checking accounts and that sort of thing, make a list, 'cause you're the one that knows that. And if people just need to try to gather that up, there may be some holes in what they find. Okay.
Should you add your trustee or agent to your accounts?
MARTY: Yeah I've also heard that it's wise to make sure that whoever you've named as your trustee or or your agent to add them to all of your accounts, that makes it a lot easier for them. Is that a bad idea?
KURT: That's a really bad idea. And I'll go into the weeds a little bit on this. If I have my name on an account, and it's only my name on the account, who owns that account?
MARTY: Makes it really clear who owns it and who doesn't.
KURT: If I have my name on the account and my daughter's name on the account, who owns that account, right?
Me and my daughter? I may not wanna be giving my daughter all that money and if I become disabled, and my daughter is my general durable or financial power of attorney, she can go to the bank and say, "I'm dad's financial power of attorney. I need to be on the account as power of attorney."
Now what that means is, she's acting for my benefit as to that account. She doesn't own it. Which means if she gets a judgment against her, whoever has the judgment can't get to that account. She doesn't own it, so it means she couldn't just empty out my bank account, not that she'd do it, and buy a Corvette-- I think she prefers foreign cars-- but if she owns the account, guess what?
Somebody that's on the account as an owner, gosh, there are some real risks to me for having done that. So please do not put somebody on your checking or savings accounts. Use the power of attorney.
MARTY: That's great.
KURT: Thanks for asking that. Yeah.
Taking over when a person is incapacitated
MARTY: In the case that you pass away, you have a death certificate, and death certificate is utilized by the trustee or whoever to start acting on your behalf according to the will and the plan.
KURT: Yes.
MARTY: But what about when you become incapacitated? Is there a nationwide acceptable document or process by which the trustee can say, "look, Marty is still alive, but he's incapacitated."
How do we document that? Is there something that person then signs or sends in somewhere? It's like the alive version of a death certificate.
KURT: Yeah. I am not aware of any, like, registry for "this person is disabled." Most of the time financial powers of attorney will say, is this effective or if a doctor certifies in writing that I'm disabled? Or is it effective right away?
Which means the agent can go to the bank right now, if needed.
MARTY: Interesting. Okay. So this is why it's really important that you're choosing somebody that you trust to have you and your best interest at heart.
KURT: Underlining three times. Yes.
MARTY: Yeah. Okay. Isn't really a really clear delineation between capable and incapable, it sounds except maybe a doctor's signature.
KURT: And the reason you might wanna say have my doctor decide if I can't manage my financial affairs is because, sometimes people have control issues,
MARTY: Right.
KURT: And they wanna say, no, I don't want my agent being able to go manage my bank account unless a doctor says I can't do it.
Scenario planning - different instructions for when one develops Alzheimer's?
KURT: I'm seeing another question, have you ever worked with someone who was like, "Early on I wanted X, but once I reached this point in my Alzheimer's progression, I want Y."
MARTY: Yeah, I think I can give an example. In other words: Look, I'm 46 years old, I'm not yet symptomatic with Alzheimer's. If I were to get in a car accident, my wishes for my care today might be very different. But if I don't change my documents, I wanna put a different scenario in the documents that say but if I have Alzheimer's disease stage whatever -I have stage four Alzheimer's disease, whatever they can quantify it as- and then I'm accidentally in a car accident, then I don't want lifesaving because I don't wanna live through Alzheimer's. I don't want somebody to resuscitate me if I can't remember my wife's name. But right now, if I get in a car accident, I want somebody to resuscitate me.
KURT: So there's a tension between general instructions and specific instructions, right?
I tend to go toward, let's go with general instructions and make sure your Medical Power of Attorney knows your desires. That gets back to the conversation thing. Because, let's say the scenario plays out, you get in a car crash, and doctor looks and says, "yeah, he is gonna be fine. He's just knocked out for a while."
Then the medical power of attorney would say, "go ahead and maintain; keep doing all the everything."
If the question would then be okay, stage four has developed, AND in the car crash, then the Medical Power of Attorney, the Medical Agent would say, "Hey, I know Marty and Marty would, you know, if this situation came up and he could vote on it, he'd say, please take this course of action."
And so that's why having somebody in that role that you trust that has your best interest at heart, that knows your desires, is a very important thing. We can't imagine all the potential things that could happen.
MARTY: Okay. Yeah. So it seems like both the documents being in place and the conversation that you referenced earlier are really huge pieces and I think it might be a good idea to record that conversation. Just turn on your cell phone so that nobody can misconstrue or misremember later what it is you said.
KURT: Yeah. I think there are a bunch of ways of documenting it. It didn't even occur to me to say, "oh yeah, let's record this," but that could be very useful. The Conversation Project, which is theconversationproject.org, it has like some form letters to my loved one, form letters to my doctor that could give some guidance on that as well. Or just a letter that says, here are the important values that I have. Please take these into account if I become disabled.
MARTY: Yeah. Okay, so one thing I did wanna recommend on here, just to get it on the record, was a recommendation of the Nokbox. I dunno if you've heard of this.
KURT: I have heard of it. I've been hearing it on NPR lately, I think.
MARTY: Yeah. Yeah. So I think it's really, it's spelled N-O-K-B-O-X and it's basically if you get knocked off, all of this, you know, box has everything in it that you'd want.
KURT: It's stored digitally?
MARTY: Yeah, you store it digitally if you want, but this one is specifically, they've " thought through it all" and they have file folders for what you might have in there, like your cell, your cell phone bill, so that they can turn that off your home line, your internet, all of those things. Not to mention ...
KURT: all your passwords or...
MARTY: Exactly!
KURT: Your password...
MARTY: Basically make it really easy for your whoever's settling your estate when you kick the bucket.
It's all in this one full box. And then of course, you can they'll sell you an upgraded, like, fireproof box, but I think it's pretty brilliant. And yeah, I need that in my life right now. Like it's a pretty darn good idea to just have it all in one place, so that just in case, somebody could clean up your mess. We've dealt with this a number of times in my family, and boy it, it would be nice to just have everything in place.
Protecting beneficiaries that have Alzheimer's
KURT: If you're related to somebody that has Alzheimer's you should make sure that your beneficiary designations -if your loved one becomes unable to manage their finances, make sure they're not named as a beneficiary, or that they're named as "in trust" for my loved one. Because then you could have a court come in and say, "okay, we're gonna preserve these assets for this person's benefit even though they're unable to manage those assets for themselves."
MARTY: Yeah. Yeah. And also like me and my wife, right? Yes, it's obviously on the top of my mind that I could get sick any day now and and go down this road, but at the same time, my wife could get hit by a car, so we need to make sure to have her documentation in line as well. And probably, if I was 50 right now, probably not name me the executor, because I might not be very well at that point. I might not be disabled, but I might not be the right person to be handling all that stress and all. So I actually love the idea of hiring a professional executor for my will or for her will, because they just do it all the time.
It's not quite as emotional. They know how to call the...
KURT: Right.
MARTY: ... they know how to call Verizon and turn off the bill.
KURT: And they know the rules.
MARTY: In the meantime, I could just be grieving and preparing a funeral. Awesome. Alright, if you're okay, I do wanna make sure to get a few Q and As... so let's go ahead and turn off the recording.