#TuesdayTips: Asset Preservation in 3 Easy Steps

Asset preservation is simple; all it takes are three easy steps.  First, know the rules.  Second, know your predators.  Third, know your options. 

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By Jessica L. Estes

Asset preservation is simple; all it takes are three easy steps.  First, know the rules.  Second, know your predators.  Third, know your options.

There are two sets of rules: rules that apply during your lifetime and rules that apply after your death.  During your lifetime, your named financial and health care powers of attorney will be able to act for you with respect to your finances and medical/end- of-life decisions, respectively.  These are your rules.  If you do not have these powers of attorney, you should get them; otherwise, your loved ones will have to apply for legal guardianship of you.  Not only does this require certificates of incompetency from two doctors, but it also requires a hearing and/or trial, which can be costly.  And, the court will be involved in your finances and health care decisions until you die.  Guardianship is the government’s rules.

After your death, your Last Will and Testament will take effect and your personal representative, or executor, will distribute your assets to your beneficiaries.  The Will represents your rules, but the Will must be probated, which is a legal process involving court oversight (or, the government’s rules).  Again, this can be costly, ranging from 5% to 20% of the total value of your estate according to AARP, and the personal representative cannot distribute assets to the beneficiaries for a minimum of six months.  Also, probate estates are available for public inspection.  Rather than a Will, you may want to consider a trust, which would bypass the probate process and the government’s involvement.

Now that you know the rules, you need to be aware of your predators.  They include the government (i.e., guardianship, probate, and taxes), long-term care costs (i.e. in-home care, assisted living and nursing homes), family (e.g. a spouse that requires long-term care or a child that is a spendthrift), and lawsuits, either yours or your beneficiaries.

Finally, your options – use the government’s rules or make your own.  By drafting your documents in a way that assures: 1) you are in control, 2) you decide who benefits from your estate plan and 3) you direct when and under what circumstances (e.g. while you are alive and well, incapacitated, and deceased) such benefits are distributed, you have created a proper estate plan that protects not only you, but your family as well, during your lifetime and after.   And remember, most people have documents, but not a plan.  To create your plan today call ERA Law Group at (410) 919-1790!

#TuesdayTips – New Guardianship Rules

eing declared incompetent is not something Maryland Judges take lightly.  In fact, in order to provide even more protection to these vulnerable adults, members of the Maryland Guardianship Work Group worked actively to change certain rules.

 

As of January 1, 2018, rules related to Court-Appointed Guardians, Guardianship’s, and Attorneys changed.  In this week’s #TuesdayTips article, the attorneys of ERA Law Group remind our readers the purpose of a Guardianship and what rules have changed.

Many people find themselves in a precarious situation when their spouse, parent, sibling, friend, etc. are no longer able to feed themselves regularly, pay their bills, see the doctor, and just generally not take care of their person or finances.  When a person is no longer able to appropriately care for themselves or manage their property, it is important to ensure that they are protected.  To do so, a Petition for Guardianship of the Person, Property, or both is filed with the Court.

When filing a Petition for Guardianship of the Person and/or Property, the Petitioner is seeking the Court to declare the alleged disabled person incompetent and therefore unable to care for themselves and/or manage their property/finances.  This would let the Petitioner, when appointed Guardian, to act on behalf of the alleged disabled person and make sure they are taken care of physically and financially.

The Petition itself requires various information about the alleged disabled person, including but not limited to their finances, the purpose of the filing, the diagnosis, etc.  Attached as exhibits, the Petition also requires two certificates completed by two different medical providers who have evaluated the alleged disabled person.  After filing, the Court will appoint the alleged disabled person an attorney to represent them in the proceeding.  The Petitioners will also be required to notify certain people and facilities that would need to be made aware of the Petition.  Finally, there will be a hearing to decide whether the findings are such that the Court will declare the person incompetent and appoint a Guardian, presumably the Petitioner.

Being declared incompetent is not something Maryland Judges take lightly.  In fact, in order to provide even more protection to these vulnerable adults, members of the Maryland Guardianship Work Group worked actively to change certain rules.

As of January 1, 2018, the following changes were made:

  1. There are new certificate requirements to be completed depending on whether the medical provider is a physician, psychologist, or licensed certified clinical social worker.
  2. There are now training and eligibility requirements for Court Appointed Attorneys for alleged disabled persons.
  3. Appointed Guardians are now required to undergo an orientation and training so that they have knowledge of their new roles as Guardians of the Person and/or Property of the disabled person.
  4. Additional factors for the Court to consider when determining whether to appoint someone a Guardian who has been convicted of a serious offense or when to require a Guardian to post a bond.

The health, safety, and wellbeing of your friend or family member is of utmost importance.  Call the attorneys at ERA Law Group, LLC today to help navigate you through this process.

#TuesdayTips: My Role as Court Appointed Counsel

Guardianship is the court process whereby an individual (usually a family member) is appointed by the court to make health care and/or financial decisions form someone who the court has deemed incompetent and not able to make those decisions him or herself. Because this is such an important proceeding, the legislature has felt it necessary that when a guardianship petition is filed in the court, the court shall appoint a member of the bar (an attorney) to represent the alleged disabled person (ADP for short) during the process.  The Court Appointed Counsel is responsible for representing the ADP and asserting their wishes and instructions regardless of their physical or mental status. 

What is guardianship and do I need it?  Guardianship is the court process whereby an individual (usually a family member) is appointed by the court to make health care and/or financial decisions form someone who the court has deemed incompetent and not able to make those decisions him or herself.  It is what the court calls, “the means of last resort” because the court prefers alternatives over guardianship because it is so restrictive.  Such alternatives are powers of attorney, joint account ownership, etc.

Guardianship is taken by the court very seriously.  Why? The answer is actually simple.  When a person is incarcerated in prison, he or she has lost their liberty, i.e., their ability to make their own decisions.  With guardianship, even though it is a civil matter and not criminal, the court is making a determination that a person is not competent based on medical evidence, and essentially taking that person’s rights away to make medical and financial decisions from that point forward.  The only way to get guardianship removed is to prove that the medical condition no longer exists or the person has regained the ability to make their own decisions.

Because this is such an important proceeding, the legislature has felt it necessary that when a guardianship petition is filed in the court, the court shall appoint a member of the bar (an attorney) to represent the alleged disabled person (ADP for short) during the process.   That attorney is referred to as the Court-Appointed Counsel or CAC.  The CAC is responsible for representing the ADP and asserting their wishes and instructions regardless of their physical or mental status.  That means that if a person with end-stage Alzheimer’s Disease does not believe anything is wrong and does not want a guardian, it is the CAC’s job to tell the court the ADP does not want a guardian.

Additionally, as part of the job of a CAC, he or she may also interview family members, review medical records, request depositions of medical professionals, and although very rare, conduct a jury trial on behalf of the ADP if competency is strongly contested.  Often times, the ADP is either unconscious or non-communicative due to a disease or physical trauma, like a head injury.  The court will regularly call on the CAC to opine as to the best-suited person to serve as guardian because the CAC is the court’s eyes and ears during the guardianship process.

Since the guardianship process can be very intense and contentious, it is best to be prepared and get your estate planning documents in order.  The best part about estate planning is YOU get to choose who makes those difficult medical and financial decisions.  If a guardianship is initiated, you may not get who you want.  For example, you might not get along with your child, and would prefer your sibling be your guardian; however, if a guardianship is initiated, your child stands in a higher priority of appointment than your sibling.  Therefore, if the matter is contested, your sibling would have to prove that he/she is better suited to be your guardian than your child.  So as parting words of wisdom…make sure you are prepared!  Get your estate planning documents together so you can avoid guardianship at all costs!  Call the attorneys at ERA Law Group, LLC today at (410) 919-1790.

#TuesdayTips – Filing for Guardianship

When a person is no longer able to appropriately care for themselves or manage their property, it is important to ensure that they are protected.  

Many people find themselves in a precarious situation when their spouse, parent, sibling, friend, etc. are no longer able to feed themselves regularly, pay their bills, see the doctor, and generally not take care of their person or finances.  When a person is no longer able to appropriately care for themselves or manage their property, it is important to ensure that they are protected.  When a person will not or cannot voluntarily seek assistance on their own, you may have to request the Court to intervene in order to ensure their safety.  On this week’s #TuesdayTips article, the attorneys at ERA Law Group, LLC want to discuss the process of filing for Guardianship.

When filing a Petition for Guardianship of the Person and/or Property, the Petitioner is seeking the Court to declare the alleged disabled person incompetent and therefore unable to care for themselves and/or manage their property/finances.  This would let the Petitioner, when appointed Guardian, to act on behalf of the alleged disabled person and make sure they are taken care of physically and financially.

The steps to file the Petition can be confusing as the Petition requires specific information and documents for filing.  For example:

  1. The Petition requires various information about the alleged disabled person, including but not limited to their finances, the purpose of the filing, the diagnosis, etc.
  2. The Petition requires time sensitive certificates related to the alleged disabled person’s disability from two medical providers.
  3. After filing, the Court will appoint the alleged disabled person an attorney to represent them in the proceeding. The attorney will meet and speak with the alleged disabled person and contact anyone else, including the Petitioner, that s/he feels is necessary.
  4. The Petitioners will also be required to notify certain people and facilities that would need to be made aware of the Petition.
  5. Finally, there will be a hearing to decide whether the findings are such that the Court will declare the person incompetent and appoint a Guardian, presumably the Petitioner.

In most cases this process is painless.  In the other cases the process can be litigious and emotionally challenging for the Petitioner, the family, and the alleged disabled person.  In either case, it would be in your best interests to speak with an attorney to make sure the Guardianship process is completed effectively and accurately.  In the event you oppose the Petition, it’s important to make sure your opportunity to object does not expire and your objections are appropriately identified.

The health, safety, and well-being of your friend or family member is of utmost importance.  Call the attorneys at ERA Law Group, LLC today to help navigate you through this process.