Podcast transcript:
SUMMARY KEYWORDS
estate planning, asset protection, trusts, sandwich generation
SPEAKERS
Karen Covy, Candace Dellacona
Karen Covy Host
00:10
Hello and welcome to Off the Fence, a podcast where we deconstruct difficult decision-making so we can discover what keeps us stuck and, more importantly, how we can get unstuck and start making even tough decisions with confidence. I'm your host, Karen Covy, a former divorce lawyer, mediator and arbitrator, turned coach, author and entrepreneur. And now, without further ado, let's get on with the show.
With me today I have the pleasure of speaking with Candace Dellacona. Candace is a principal and shareholder in the Estates and Trusts Practice Group at Offutt Kerman in New York City.
00:52
Candace focuses her practice on estate planning, asset protection planning, elder law, estate administration and special needs planning and advocacy. She works closely with multiple generations of family members to protect what they have through every phase of their lives by constructing wills, trusts and medical directives that address each of her clients' unique goals. She also works with her clients to proactively protect their financial assets, arrange care, establish medical directives, mitigate the burden of estate taxes and address business succession planning. Candace is also the host of the podcast, the Sandwich Generation Survival Guide. Candace, welcome to the show.
Candace Dellacona Guest
Thanks so much for having me, Karen.
Karen Covy Host
It is my pleasure and I want to start by diving into your podcast, the Sandwich Generation Survival Guide. First of all, for any of our listeners who don't understand what the sandwich generation is, can you enlighten us?
Candace Dellacona Guest
01:51
Absolutely. If you think about a sandwich, Karen, you have two pieces of bread at the top and the bottom, and then whatever the contents of sandwich you love to consume, right? And so the sandwich generation are really sort of a moniker to describe those of us in the middle. And we're in the middle because we have aging parents or aging loved ones, and we have ourselves in the middle and then perhaps raising children into adulthood and all of the trials and tribulations that go along with being stuck in the middle, caring for multiple generations, trying to care for yourself and holding it all together.
Karen Covy Host
02:30
So this sounds like it might be personal, like there's a reason behind your fascination with the sandwich generation. What is it?
Candace Dellacona Guest
02:40
Absolutely it is. I mean you hit the nail on the head, and I mean all endeavors become personal when you're passionate about them, right? So I'll tell you that, as a parent to three teenagers entering adulthood and being a daughter and a niece, you know, caring for aging loved ones really put me in a position of feeling the squeeze of the sandwich generation. I'm headed into my 50th year and I really felt more empathy and camaraderie with my clients than had I ever felt before, in the sense that you know, many of my client’s adult children came to me trying to advocate for their parents as they aged, while simultaneously being pulled in a different direction with their own kids. And after 22 years of practicing, Karen, I realized I had this tremendous sort of Rolodex, aging myself, of professionals and contacts and resources that I really wanted to share with other people, whether or not they were my clients.
Karen Covy Host
03:45
That's really beautiful, but, as you said, working with people you know this ties in with your work. What you're experiencing is being part of the sandwich generation, and one of the things that you help people do is to protect their wealth, to protect the legacy that they have for themselves and for their children. What are the tools available to people to do that?
Candace Dellacona Guest
04:12
It's a great question and here's the great news. There are a lot of tools, and I think what everyone should keep in mind is it's never too late, even if you quote start late the tools that exist to ensure that those assets or those legacies are protected, sort of wide-reaching right. I would say there are two categories you have what we call advanced directives and you have estate planning tools. So advanced directives are healthcare directives and powers of attorney. The reason why those are important is because often before we die, we become incapacitated and we need to appoint other people to help us make those financial decisions to protect our assets. And appointing someone under, for example, a power of attorney allows a person that you trust to make those financial decisions if you never got around to making those decisions before you became sick. So the power of attorney is certainly one document I would highly recommend in terms of your tools.
05:17
And then, of course, if you do have the value of or, pardon me, the foresight of creating a trust in advance, of actually needing care, then the trust itself will act as a tool to protect your assets, and a trust is really an instrument or a vessel where you can put assets in it and, depending on the terms of the trust, those assets can be protected from taxes. They can be protected from creditors like Medicaid so that perhaps you can qualify for public benefits one day. They can be protected from other creditors from, for example, if you're ever sued. Or it can protect the assets from the beneficiaries themselves, and what I mean by that is you may have three kids who are terrific people, but one of them may be an absolute maniac with money and make terrible financial decisions. So you can create a trust to protect those beneficiaries from themselves.
Karen Covy Host
06:15
So say more about that. How does a trust protect someone from themselves?
Candace Dellacona Guest
06:22
Well, a trust is your universe right, and it sets the table and creates a set of rules in which you decide how you want your assets distributed to a beneficiary and in what form. So, for example, my prior remark about three children if you have three children and two of them are fantastic in terms of organizational skills and financial acuity, but one of them is a great person with a good heart but is not so great managing money, the trust instrument can be set up so that the funds are there and equal to the siblings, but the funds are distributed with the help of a trustee who will help the beneficiary who's not so financially savvy properly manage those funds so that they are not lost or wasted or used in a way that perhaps might not be the best way to use those funds.
Karen Covy Host
07:23
Okay, so let's talk about that trustee person, right? So what prevents the beneficiary from saying, going to the trustee and saying, oh, you know, I really need this money right now and can you just give it to me and I'll be fine. I promise I'll handle it well.
Candace Dellacona Guest
07:40
Yeah Well, the trustee is a fiduciary right and what that means is a trusted person that has an obligation a legal obligation to ensure that the funds are really held and distributed with great care. And what that means is, if a beneficiary approaches a trustee and says, please, pretty, please, may I have this money? I want to buy a $70,000 car, the trustee can say, look, I understand that you need a car, but I don't think you need a $70,000 car. Let's take a look at something more moderately priced. And instead of handing the money over to the beneficiary, the trustee can pay the loan, for example, the car loan, directly. So there's a way to ensure that the assets and the value of those assets, the money, is enjoyed by the beneficiary, but not within the control of the beneficiary. Does that make sense?
Karen Covy Host
08:39
Yeah, it makes total sense and you know, as you and I both were attorneys and we understand a little bit more about the ins and outs of trust. But for people who are listening, who might not, yeah, how do you establish those rules? Is that part of the trust document that you say, when this happens, do this, when this happens, do that, or the trustee can do this? Is that how it works?
Candace Dellacona Guest
09:02
Exactly right, Karen. So the trust, as I said, is your universe. So you get to create the rules and the ways in which you want the trustee to distribute the funds or not to distribute the funds. For example, I had a client who really held education near and dear and what he directed was that the funds could be used for education. He got even in that you can direct that the funds be used for any educational pursuit. It can be broader to say that the trustee has total discretion. So what I would suggest for the client is to think about who the beneficiary is and what you would want done if you were here and start from that place to kind of create the rules for the trust instrument.
Karen Covy Host
10:10
Well, that brings up another question how do you find this trustee person? Who do you name as the trustee? Because it would seem to me that person has a lot of control, a lot of responsibility. How do you choose that person?
Candace Dellacona Guest
10:26
That's a great question too. You know, trusteeship is tricky because you want a person who is financially responsible. They themselves are, what we say, on the hook, right? To make these important financial decisions. They are fiduciary, so they have a higher level of care and due diligence. So it's definitely someone who is responsible and really can make good decisions and engage others, like lawyers and accountants and financial advisors, to help them make those good decisions. But in my mind, ideally, you would want someone that has all those skills and has some affection for the beneficiary. So in the ideal world, the trustee would be someone who has all of these characteristics and also knows, understands and has some affection for the beneficiary and knows what you would want. Now that's a tall order. So not every family has someone who can serve in that role, who has those qualities and has great affection. So for the families that don't have someone to fill that role, there are trust companies, there are financial advisors, there are accountants, there are lawyers who will fill those roles as trustee as well.
Karen Covy Host
11:43
Interesting and so would that be something that if a family has a substantial amount of wealth and they have a family office, would that be something that's handled through the family office?
Candace Dellacona Guest
11:56
Absolutely. So often when families of significant means have a family office and their funds are already being managed. Often they employ professional trustees already and those family office members do know the family. They understand the family dynamics, the family politics, the strengths and the weaknesses of the beneficiaries and the personalities involved. So, absolutely, that is a great option for many people.
Karen Covy Host
12:27
So tell me a little bit. I probably should have backed up here for anyone who's listening, who doesn't understand what a family office is. Can you explain that, sure?
Candace Dellacona Guest
12:36
A family office is sort of I would say an organization, if you will a structure created specifically for a family that has significant means. They generally employ investment advisors and professionals like myself and accountants to ensure that the family funds are invested and managed properly.
Karen Covy Host
13:01
Okay, so let's talk. I want to take you on a bit of a rabbit hole here, right? Because one of the things that I see they really wish they could go their separate ways, but they really also don't want to destroy the family wealth. They want to make sure that their wealth is passed on to the next generation. They have really specific ideas about what they want to do, but they also want to live their life and they're not happy in the situation that they have.
13:45
So for those people, they're interested in creating what I call a legacy marriage, which is a marriage that they stay married legally but they can make up the rules of their relationship so that they can live differently, if both of them are in agreement with that. And one of the big obstacles to doing this is how do you make sure the finances stay intact and that they're spent the way the couple wants them to spend those assets? Because what could happen is that one of the spouses, or both of them, find somebody else outside of the marriage who tries to tell them oh, buy me this, buy me that, spend more, blah, blah, blah, blah, blah. If a couple came to you and said this is what we want to do now. How would you tell them to do it?
Candace Dellacona Guest
14:37
Well, here's the great thing. Right is that every marriage is different and you know, what you just described is not as uncommon as people think. I think you know we are living described is not as uncommon as people think. I think you know we are living much longer than we ever have before. You know, the life expectancy tables continue to expand each year, which is a great thing. I mean, it's a testament to our health care and the way that we're taking care of ourselves in general, the way that we're taking care of ourselves in general. But I will say that, yeah, I have had many clients that are clearly together in sort of a more business and partnership way and their concern is that their funds are not usurped by an interloper, whether that's post death, right after someone passes away and you know, and the spouse takes up with a new partner, or if there's some kind of agreement and it's before someone passes away, the best way to ameliorate the risk and right, which is a great mechanism to set the rules for the assets and for the distribution of those assets.
15:51
So, for example, irrevocable trust can be set up for those spouses. We might consider something called a SLAT, which is a Spousal Lifetime Access Trust where one spouse can gift to the other spouse in trust assets. Generally it's an income right during that spouse's life and then, upon the spouse's death, whatever is left over can pass to their children. SLATs are very, you know, great tools in many ways because they provide sort of that certainty, but they are irrevocable, and so when you have a family situation in that way where there is more of a business, transactional relationship, that might be one of the answers In terms of the way to sort of reduce the exposure of interlopers after death, creating theseatory partners. And a predatory partner is someone who comes in late in life, to my client's life, and starts to exercise control over finances in a way that was not anticipated, and it's really hard to undo when that starts.
Karen Covy Host
17:21
Interesting. So say, how does that happen? I mean, what are you seeing?
Candace Dellacona Guest
17:27
You know, I think, as we age we become vulnerable, and we become vulnerable from a psychological perspective, an emotional perspective and just for practical purposes. I'm here in New York City and it can be a really isolating place, and so the way that it happens, I think, is people feel lonely and they look for that connection. And when you are looking for that connection you may sort of dismiss what would otherwise be red flags in a relationship. And I think with the COVID pandemic that we are thankfully coming out of, or pretty much on our way out of, permanently, I hope there were a lot of seniors that were isolated from their families of origin or their families of choice and these ne'er-do-well partners came in and exercised a lot of control over many seniors, certainly here in New York City and in the suburbs I know in Chicago, where you are. There were a number of cases that I have read about really across the country and it can be very scary because the predator can really take over the finances and leave your loved one with nothing your loved one with nothing.
Karen Covy Host
18:53
Wow, and how? Let's say, someone has, they've had the foresight to try to prevent this, to plan for it in advance, and so all of their assets are in trust, but the predatory person doesn't know that. Okay, so what happens when they say, oh, make me power of attorney. And the older person makes them power of attorney, thinking that this is fine, they're in love and all the things, but the person just wants their money. What happens? How does this play out?
Candace Dellacona Guest
19:22
You know, unfortunately that happens quite a bit, right, so you have trust set up and then the interloper comes in and they start taking away the position of trust from other people.
19:34
So the senior, who may have limited capacity, removes a daughter or a son and appoints their new girlfriend or boyfriend or significant other to play that role, and it can be really complicated. Financial advisors are usually a great stopgap for things like that. There are rules in brokerage houses called know your customer rules, so they are usually the first sort of person or entity that spots things like this. Unusual financial activity on an account, significant withdrawals, changing of beneficiaries, all red flags. So I think it's really important for us as the sandwich generation, the in-between, the quote younger of the generations to really keep lines of communication open and make contact with your aging loved ones. You know advisors, whether that be a financial advisor or an accountant or even someone at the local bank branch just letting them know that you're there and you're caring for your parent or your aging loved one, so that they know who to call if they start to see signs of perhaps predatory financial activity.
Karen Covy Host
20:51
So that's interesting because I know, for example, when it comes to the medical rules in HIPAA, the providers can't talk to just anybody about someone's medical condition. They have to have permission. So how do you? Is there something similar in the financial world that you need a certain form or you need to have written permission so that the financial person will give you a call and say hey, I just noticed that your mom or your dad did blah, blah, blah, blah, blah. You might want to check in on them.
Candace Dellacona Guest
21:24
That's a great question. So usually that role is as power of attorney, but let's say, for example, the aging loved one was sort of duped into signing a new power of attorney, right, and appointing the significant other. One of the things that you can do before all of this happens is you can give permission for statements to be sent to your child and you can give standing permission for the broker to speak to your child going forward. Now, look, there are problems with that also right, because sometimes the predatory actor can be your own child. Make no mistake, that happens as well.
22:01
So there is no perfect solution to entirely stop the fraud, but if you really believe that there is fraudulent activity as it relates to your aging parent, you can certainly call the broker and what would happen, vis-a-vis their own internal rules, is they'll freeze the account and do an investigation, and many of these larger financial brokerage houses actually do investigations for risk of elder fraud because it happens so often, and an investigation will be started. You know, in addition to that, if you're worried about criminal activity as it relates to large transfers and withdraws and transactions, most local police departments have elder abuse units. Local police departments have elder abuse units, so you can reach out to local authorities and explain that your aging loved one is over 65 and that you are worried about their exposure of perhaps a financial crime, and they really should do some investigation.
Karen Covy Host
23:01
Does it make any difference if the money is held in a revocable or an irrevocable trust? Does that matter at all?
Candace Dellacona Guest
23:09
You know it does in some forms. But even taking a step back, I think having assets in a trust is really the first threshold that makes it much more difficult for predatory actors to step in. So thinking about creating a trust and putting people in place whom you trust, especially as you age, is a really good preventative measure so that people can't easily interlope and take control of your finances.
Karen Covy Host
23:41
That is. This is so fascinating. Does it happen a lot or is? Are you seeing more of it? Is it on the rise?
Candace Dellacona Guest
23:51
You know what's really sad, Karen is immediately after this podcast I'm headed to a rehabilitation facility here in New York City to see a client whose long-term significant other has done just what we're discussing. And he is not my first client. Having gone through this, I've had probably a half a dozen or so in the last eight months who have been subjected to significant other financial abuse. It's really hard to prove, it's really painful, it's embarrassing. You know, oftentimes our clients realize a little bit of what's going on and it's really hard to speak on it because they feel taken advantage of and they feel foolish. So yes, I think it happens all the time. These are just the cases that I know about. I'm one of I don't know how many attorneys here in the great city of New York, and so I'm sure many of my colleagues have dozens of examples themselves.
Karen Covy Host
24:58
Wow, and what caught me in what you just said was it was a long-term significant other, so it wasn't someone who like what we were speaking of before, someone who just saw an opportunity, jumped on it and in six months, came and went.
Candace Dellacona Guest
25:16
You're exactly right, and in fact one of my saddest cases involved a client who was fooled into co-signing law school loans for his significant other's grandchildren.
25:31
Gifts were made, beneficiaries were changed, the person eventually moved into the significant the elderly person's apartment here in New York City and systematically discarded most of the client's things and caused further disorientation Because, as you know, people who have memory impairment issue, the familiarity of the surroundings is super important to keep them oriented. And this significant other methodically discarded most of my client's items to the extent that the client became really kind of confused in terms of where they were. And what we eventually realized is that, you know, there was a level of abuse emotional abuse going on, and then it turned physical and it was very subtle physical abuse as it related to withholding medications, administering things like Benadryl, so that the client slept all the time and the client was unaware of what was sort of going on around the client. And so you know, this relationship was a long relationship and it became quite predatory. We think that other family members were involved and they saw an opportunity. So it happens all the time, unfortunately.
Karen Covy Host
26:50
That's really scary, especially if you know if there's a couple and their relationship isn't going well and they're trying to do something because at least they trust each other, you know and they're trying to prevent this kind of thing from happening. Wow, that's, that's just amazing to me. But I'd like to take us on a slightly different bent, because I know that, in addition to working with elderly people, you work with athletes with high performance. You know high performers, high income, but people whose careers can be shorter than they expect. So how do you work with someone like that? How do you help them?
Candace Dellacona Guest
27:35
So here's the great thing about my field right, Everyone's going to die we know that for certainty, and whether or not you're an athlete or you're a senior citizen living on the Upper West Side of Manhattan, we all have that in common and so a lot of these issues are really universal. I think what distinguishes my public facing clients and many of my athlete clients is that they are in a position where their body and their skill is really their mechanism to earn money, and one's health is never guaranteed, and there is some certain amount of time as humans where we are in our peak athletic possible condition. Now I'm obviously not a professional athlete, but those who are really see the peak of their earning capabilities at a much younger age. So whereas the average client, Karen, starts thinking about death, dying and disability as they move into middle age, perhaps athletes really are in a position to have to start thinking about their estate plan much earlier, because they're earning a significant amount of money quickly and early.
Karen Covy Host
28:50
Interesting. And would that be the kind of thing? If an athlete knows that perhaps they don't have the financial savvy that they wish they had and they don't have time to focus on it right now? Is that the kind of thing, you know? Can they create one of the trusts that we were speaking of before to protect themselves from themselves as they get older?
Candace Dellacona Guest
29:13
Absolutely, and you know those mechanisms, those trusts can also provide income, an income stream, and what we do with many athletes. And you know, taking a step back, the athletes who are young recognize they're young and they recognize that they have to rely on other professionals to manage what they have, because they are busy training like you and I could never imagine Right. So their efforts and their energy is going into their skill. Their seasons are generally year-round, because if they're not in season they are off season training. Um, those training periods have gotten longer and longer, um, as I've been an attorney. So instead of, you know, four months in the preseason, we're up to eight months in the preseason and four months in the season. So that's a year-round endeavor, Um, but you know to your point.
30:07
Yes, a mechanism, a trust can be set up, not only for the athlete him or herself but also for the family members who supported that athlete. To get the athlete to where he or she is, oftentimes it takes a village, and so these athletes have really close relationships with family members who they really want to help support financially.
30:26
They sometimes are coming into means that they never thought possible, real, significant wealth, and sometimes these athletes come from nothing, and so it can be a real, amazing opportunity for a family to create generational wealth, to protect that wealth from taxes and creditors and predators in the same way seniors have to worry about predators. You would not believe the sort of quote unquote opportunities many of my clients are presented with to invest in, many of which are perhaps not the most sound investments. You look at someone like Tim Duncan, the famous basketball player who was led astray by a financial person who supposedly made all of these quote guaranteed investments. Thank goodness Mr Duncan did other planning and he had some money, but it is rumored that he lost in the tens of millions of dollars. There is also the example of the famous Dodgers player who was taken advantage of by his interpreter and tens of millions of dollars is missing. So athletes really do have to protect themselves and trusts are a great way to do that.
Karen Covy Host
31:42
So just out of curiosity, let's say you were duped or bilked or whatever word you want to use. Your tens of millions of dollars is gone. Is there any way to get that back?
Candace Dellacona Guest
31:51
There might be a criminal investigation opened against the perpetrator or the alleged perpetrator. Oftentimes that person has already spent the money. Certainly, you can go after them civilly to try to recoup. But again, if the money is spent it's really hard to go after those sort of bad actors. But what I will say is that if a bad actor had access to those funds through a financial means that was legitimate, there is an opportunity to go after perhaps the brokerage house that was holding onto the money and made the transactions on behalf of the interloper in the athlete's life.
32:39
But it's more important than ever that these athletes and these public facing people are surrounded by trustworthy individuals who advocate for them. But as I say to all my athlete clients, don't rely on other people. You should know what you have. You should constantly take stake and really look around and make sure that the investments that are being made with your money are sound investments. Maybe that means getting a second opinion, but it's really important that the investments that are being made with your money are sound investments. Maybe that means getting a second opinion, but it's really important that the athlete stay present with their own assets and make those financial decisions with the trusted professionals and really play an active role in their own life as it relates to their finances.
Karen Covy Host
33:24
Yeah, that is fabulous advice for anyone to hear. It's also the same advice, or very similar advice, to what I give my clients. I tell them no one is going to care about your divorce more than you do. You have got to be involved. It doesn't matter whether you wanted it or you didn't want it, or you know you've got a lawyer or you've got a whole team around you. It's still your life. You've still got to take an active role. It sounds like you're telling your clients the exact same thing.
Candace Dellacona Guest
33:54
Absolutely. I mean, I think at the end of the day, you can only rely on yourself, and I recently said to a young athlete you said you know, but I don't understand it. And I said well, you know what your advisor is not doing a good job, because it's their job to help you understand it. There is nothing that should not be able to be explained in a way that your client understands. And so for an advisor to say it's too complicated, don't worry about it, that is a red flag complicated, don't worry about it. That is a red flag.
Karen Covy Host
34:28
Ooh, That's a very good piece of advice and, I think, a great place. We've brought this around kind of full circle now, Candace. This has been a fascinating conversation. I have really enjoyed it. I want to thank you so much for being here and sharing your time and all your wisdom with us. If people are interested, where can they find you?
Candace Dellacona Guest
34:46
Well, thanks so much for having me, Karen. It's been a lot of fun and I, as you mentioned, am the host of the Sandwich Generation Survival Guide, which is a podcast available on Apple Podcasts, on Spotify, wherever you get your podcasts, so you can certainly reach out to me there. I'm on Instagram and Facebook as the Sandwich Generation Survival Guide and I podcast, so you can certainly reach out to me there. I'm on Instagram and Facebook as a sandwich generation survival guide and I'm also at Offutt Kerman. We have offices up and down the Eastern seaboard and on the West coast, so feel free to email me at candacedellacona@offitkurman.com.
Karen Covy Host
35:19
Thank you so much and for those listening, we will link to all of those places in the show notes so that people can find you no matter where they're looking. And again, Candace, thank you so much. And for those of you who are listening, if you've enjoyed today's conversation, if you want to hear more conversations like this, then please like the podcast, like the video, subscribe in all the places where you're listening, and I look forward to talking with you again next time.
