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Daniel Orville Kellogg

Daniel Kellogg’s Answers

120 total


  • No friends or family. Feeling pressured into an attorney being guardian. Any advice?

    Financial POA and medical POA. No family or friends to appoint attorney-in-fact. Being pressured by an attorney to be a guardian. Any advice?

    Daniel’s Answer

    A guardian could only be appointed by the Superior Court Judge if you were deemed to be incompetent to handle your financial or medical affairs. But as others have noted, you should never agree to something because of pressure applied by another person - - - whether or not that person is your attorney.
    I agree with the advice to seek a second opinion from another estate planning attorney in your community.
    If your estate is large, then it might be possible to ask a Trust Department of one of the local banks to serve as agent under your power of attorney - - - or more likely, as the trustee of a revocable living trust of which you are the beneficiary during your lifetime. If you feel that you need assistance with management of your financial affairs, that would provide a mechanism to assist you with that objective.
    Very likely the bank will decline to act as your agent to make health care decisions. So you should really try to find someone who knows you well enough that you are comfortable giving them that authority.
    But nothing should be done under pressure.
    Best wishes to you.
    Dan Kellogg
    Renton and Kent, WA

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  • Medicating without consent of healthcare power of attorney.

    My husband is in a dementia care facility. He has poor sleep habits at night and one week ago the nurse suggested medicating to sleep. I said no, and asked to have the Dr call me to discuss it further. No call. The Dr. did prescribe 50mg Trazadone...

    Daniel’s Answer

    The first issue is whether it is possible that the physician might have gotten consent directly from your husband to prescribe the medication. The fact that you apparently hold a power of attorney to make health care decisions on behalf of your husband does not, in and of itself, diminish your husband's authority to make health care decisions on his own behalf. However, if he is disabled to the point that he is not competent to make health care decisions, then the physician could not justify his action to countermand your refusal to consent to the administration of the prescription. Frankly, I suspect that the physician simply did not get any one's consent and just did what he/she thought was best under the circumstance. Usually that works out, but apparently not in this case.

    You may have the right to complain with the licensing authorities for the physician and the care facility. You may also have the right to file a lawsuit against both of them for administering the prescription without proper authorization. However, it sounds like your damages are not very great. If the situation has been corrected, you might just consider yourself to be lucky to be able to serve as your husband's caregiver to supervise his care. Wouldn't we all want someone to be overseeing the care that is provided to us?

    If you feel that you need to consult with an Elder Law attorney, I would highly recommend Bruce Pinkerton in Moses Lake at 509-765-0688.

    Thanks for all you do for your husband.

    Dan Kellogg
    Renton, WA

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  • I am being sued over a car accident that was not my fault but i am on the policy. How can i protect my assets???

    My boyfriend had the accident.,but we are both on the policy. He has no assets and i do. I am afraid of losing everything

    Daniel’s Answer

    It is critical that you immediately consult with an attorney who handles personal injury litigation. It would be best if the attorney has experience with defending these types of cases.
    I presume that you have already received service of a Summons and Complaint. If you have not done so, these documents should be immediately delivered to your insurance company. There is a very limited period of time after you are served in which you had to file responsive pleadings so that your rights are protected.
    One your insurance company receives the pleadings, they will very likely appoint an attorney to represent you. But it is critical that you also have your own independent attorney who has the obligation to be loyal to you only - - - not your insurance company.
    For example, your independent attorney may request that the insurance company appoint separate attorneys to represent you and your boyfriend so that you can assert any defenses that you may have against him, and try to pin any liability award against him.
    The most critical step for you is to retain your own independent attorney who will work to make the insurance company, and the attorney(s) that are appointed to defend your positions, work for your best advantage.
    Best wishes.
    Dan Kellogg
    Renton and Kent, WA

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  • Can a omitted child be removed from will?

    son has many criminal convictions and shown a long time history of such as-well as making poor choices can he be removed from will his granddad set up?If so would the only child his dad inherit the assets ,at this time the dad is wrote out of will?

    Daniel’s Answer

    Under WA law, an "omitted" child is one who is not mentioned in a Will of the parent. An "omitted" child is entitled to receive the share of the parent's estate to which he/she would have been entitled if the parent had died without a Will. In other words, an equal share with the other children.
    A parent can "disinherit" a child by specifically mentioning the child in his/her Will. It is best to also include specific language providing that the child is to be disinherited so there is no ambiguity.
    In your situation, the decision of whether to disinherit the son must be made by the grandparent before his death. After the grandparent's death, no changes can be made to the Will without the consent of all parties affected (including the son in question).
    The grandparent should consult with an estate planning attorney as soon as possible so that his wishes are carried out. If the grandparent lives in North Central WA, I suggest Russ Spiedel in Wenatchee at 509-662-1211.
    Best wishes.
    Dan Kellogg
    Renton and Kent, WA

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  • How do I change the alternate attorney-in-fact .

    Want to change the secondary attorney-in-fact from oldest child to youngest child. Spouse and I have two (2) children.

    Daniel’s Answer

    You should sign a new power of attorney and revoke the previous power of attorney so that the agent designated on the previous power of attorney cannot exercise any authority as your agent in the future.
    The change could be made by an amendment. But then you would have two documents (the original power of attorney and its amendment), but there would be no indication on the original power of attorney that it has been modified. It is simpler and cleaner to just sign a new power of attorney, and revoke the previous power of attorney.
    You are entitled to appoint as your agent anyone that you prefer. But I wonder whether you have considered appointing your spouse as your agent, with one or both of your children named as Alternate Agent(s).
    I recommend that you consult with an estate planning attorney in Clark County to be certain that this is done properly.
    Good luck to you.
    Dan Kellogg
    Renton and Kent, WA

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  • MY 85 YR. OLD MOTHER WANTS TO TRANSFER TITLES TO 2 MANUFACTURED HOMES ON 1 1/2 ACRES TO ME .WE ARE IN WA STATE. SHE RECIEVES

    SOCIAL SECURITY AS WELL AS 2 RETIREMENT PENSIONS,1 LISTED AS DISABILITY, FROM CA STATE.SHE HAS NO DEBT.she WANTS TO AVOID PROBATE OR ANY OTHER PENALTIES I MIGHT HAVE TO PAY AND SAYS IT IS BEST TO DO THIS AS A "GIFT", BEFORE HER DEATH. I AM HER POA...

    Daniel’s Answer

    I agree with most of Ms. Powell's answer. Your mother should definitely not make any gifts without understanding the negative Medicaid and income tax consequences both to her and to you. I recommend that your mother meet with Barry Meyers. He is an Elder Law attorney with offices in Mt. Vernon. His telephone number is 360-336-3678.

    As has been stated, avoidance of probate in WA is not a good reason to gift assets of substantial value. If that is her objective, there are other means such as a revocable living trust. However, probate in WA is not as big a problem as some of the following concerns.

    I will concede that perhaps your mother is willing to give up her ownership and the loss of control over the gifted assets.

    But if she is entitled to a senior citizen tax exemption for her real estate tax, she should be aware that by gifting the land and the homes to you she will lose that exemption.

    Most importantly for your mother, by giving away her assets she will incur a Medicaid transfer penalty which is a period of time when she will not be eligible for Medicaid if she needs long-term care during the five year period following the gift. Unless your mother is independently wealthy and has liquid assets sufficient to pay privately for her care for five years at the rate of about $100,000 per year, this is a very significant risk that should not be undertaken.

    From your perspective, if your mother gifts her property to you during your lifetime, you will "carry over" her basis for capital gains tax purposes. This means that whenever you sell the property (before or after your mother's death) you will likely have to pay many thousands of dollars in capital gains tax that could have been avoided. Had your mother retained title to the property until her death and then left the property to you in her Will or trust, you would gain a "step-up" in basis that would completely eliminate the capital gains tax on the value as of the date of her death.

    Finally, if your mother decides to proceed with her plan, she is making a taxable gift. Although the actual amount of the gift tax is likely to be zero, she will be required to file a federal Gift Tax return on April 15 in the year following the year in which the gift was made.

    So there are significant concerns for both your mother and you that ought to be addressed with a competent Elder Law attorney before your mother decides what is best in her circumstance.

    PLEASE NOTE: This correspondence is very general in nature. The actual steps that might need to be taken will depend entirely upon the facts of this case, most of which are not yet known. This correspondence does not create an attorney-client relationship with me or my law firm. An attorney-client relationship can only be established with me after a client meets with me so that I can understand the facts involved and the intentions that the client may wish to pursue.

    I wish both you and your mother the best. I'm glad you thought to ask this question instead of getting your legal advice from your mother!

    Dan Kellogg
    Renton and Kent, WA

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  • Can I Force a life ins. co. to reissue a check directly to my Dad's VISA co. to settle his bill?

    My Dad passed away 1-7-14', and he had an ins. check to pay any outstanding bills. But the check is issued to: The Estate of my Dad not the VISA co. Also my Dad passed away without a will, so I only have a medical po...

    Daniel’s Answer

    Unfortunately, it appears that your father failed to designate someone as beneficiary of his life insurance policy. Therefore, the life insurance company has no other alternative but to pay the benefit to his estate. They have no way to determine who is entitled to receive his estate. There may be many creditors, or tax obligations, or even disputes among the beneficiaries of his estate that would put them in jeopardy if they paid to anyone other than his estate.

    This situation is doubly unfortunate because it is likely that your father's estate will have to be probated in CA where he resided. As was mentioned previously, there may be some small estate alternative procedure. You should explore that with a CA attorney.

    I suggest that you contact the law firm of Kato Feder& Suzuk at 415-974-5715.

    Presumably under CA law the power of attorney that your father gave you ceased to be valid at his death. It sounds like it only authorized you to make health care decisions on his behalf anyway.

    Since your father had no Will, you should discuss with the CA attorney who is entitled to seek to be appointed as the Personal Representative (Executor) of your father's estate under CA law. Also, you need to find out who are his heirs at law that will take whatever is left of his estate after his creditors are satisfied.

    I agree with the previous advice that you should avoid spending your own money until you have a very good idea of how this is going to come out. No one cares about your father's credit rating at this point. And presumably under CA law you will have no obligation to pay his debts unless you are appointed to administer his estate.

    PLEASE NOTE: This correspondence is very general in nature. The actual steps that might need to be taken will depend entirely upon the facts of this case, most of which are not yet known. This correspondence does not create an attorney-client relationship with me or my law firm. An attorney-client relationship can only be established with me after a client meets with me so that I can understand the facts involved and the intentions that the client may wish to pursue.

    Good luck.

    Dan Kellogg
    Kent and Renton, WA

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  • Can my remarried Grandma lose her home?

    8 yrs ago my Grandma remarried. Now her husband lives in an assisted living home & she's worried she will lose her home due to community property laws. He's 92, w/severe dementia & can no longer reside in her home she's been in for over 50yrs. His...

    Daniel’s Answer

    Your grandmother's situation is complex, but not uncommon. It is a situation that Elder Law attorneys deal with on a daily basis. If your grandmother gets competent counsel - - - meaning someone who understands Medicaid - - - the outcome will not need to be devastating for her.
    The first thing that she needs to understand is that their assets are not necessarily community property simply because of the fact that they are married. It is possible to retain assets as separate property. But the status as community or separate needs to be established and maintained.
    However, she also needs to understand that all of the assets owned by both spouses count in terms of eligibility for Medicaid coverage for her husband. So she does need to take some steps to protect the assets owned by both of them from dissipation due to his long-term care expenses.
    A competent Elder Law attorney will advise your grandmother how she can enhance her husband's potential eligibility for Medicaid. This will no doubt involve the purchase of a special type of permanent annuity that allows their non-exempt assets to be protected and paid back to her over a period of years, while enabling her husband to be qualified for Medicaid almost immediately.
    The second matter of concern is to protect your grandmother's home from Medicaid recovery after the death of both her and her husband. Your grandmother also needs to revise her estate planning documents to clarify her intention regarding the support of her husband in the event that she might die first.
    So the good news is that there are remedies that your grandmother can use to protect herself and the assets owned by your grandmother and her husband. But she needs to take steps immediately to implement those strategies.

    Good luck to your grandmother and her husband.
    Dan Kellogg
    Renton and Kent, WA

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  • Is there a legal structure that can protect ones house and other assets from any law suits?

    I have been told that if a person lives in there parents house , and that person were to get into a car accident such as a DUI and someone was injured, the parents of that person can be held liable and be sued. Is this true? If so is there an asse...

    Daniel’s Answer

    Under Washington law, liability can be imposed upon parents for tort liabilities incurred by their children who are residing with them under the "Family Car Doctrine". Without knowing much more about your circumstances (for example, your age, the ownership of the auto in question, status of dependence/independence, etc.) it isn't possible to clearly advise about possible liability.
    The safe thing is to assume that potential liability exists, and be certain that all persons residing in the home and all automobiles are adequately covered by liability insurance - - - perhaps with an umbrella liability insurance policy. You can be assured that if an incident occurs, the plaintiff's attorney will join everyone possible as a defendant, and let them try to wriggle off the hook if they can. If you're not covered by insurance, the expense of defense can be enormous.
    It is very difficult to secure protection of assets from potential personal liability. In some cases, entities like a corporation or a limited liability company might be used to protect a business owner from some potential obligations.
    A few other states have an "asset protection trust" that can be used to shelter assets from personal liability. But, it is my understanding that at least in Alaska, the trust has to have an Alaska trustee, and has to be created more than five years before its asset protection qualities start. So these trusts aren't very practical for most people.
    I would focus on getting adequate liability insurance limits of at least $500,000 to $1.0 million.
    Good luck.
    Dan Kellogg
    Renton and Kent, WA

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