#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. 

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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: DIY Estate Documents Gone Wrong

Estate planning can be a very complicated area of the law.  Before going online to print off your documents, ask yourself, if I needed open heart surgery, would I go to WebMD to get the “how-to” instructions?  Not likely, so why go online to get the how-to instructions to complete your own estate documents? 

Did you create your own documents?

Why pay a lawyer when I can get my estate documents online for free (or at least at a lesser cost than a lawyer)?  Every estate planning attorney has fielded that question at some point or another.  My response is usually: “I love online documents…because it usually means I’ll have more work that makes more money in the future.”  After I say that, I typically get a grin across the client’s face and then they ask “why”?

Using online documents to accomplish your estate planning goals is not generally a good idea and in many cases can lead to severe consequences.  Have you ever heard the saying, “you get what you pay for”?  When you get your documents online, you don’t have the opportunity to talk to an attorney, to ask questions about your specific situation unique to only you or your family, and your documents will not be tailored to your specific circumstances.

Prior to your documents being drafted, you meet with an attorney to discuss your estate planning goals and objectives at the consultation.  My estate planning consultations usually last at least an hour if not an hour and a half.  During the consultation, we review your health status, family status and financial status all before we even mention the words “will” or “power of attorney” or “trust.”  You also have the opportunity to ask questions and receive specific answers related to your situation.  When you get your documents online, they are almost  never tailored to your specific situation.

What happens if you are a blended family?  I can almost guarantee you that the basic online Will does not address how to provide for your spouse and your biological children if you were to die first.  Many estate litigation cases arise from blended family situations where the surviving step parent does a new will after the spouse dies cutting out the spouse’s biological children from any inheritance.

What about your million-dollar IRA?  Who does that go to?  Many clients think the Will directs who gets that money.  WRONG!!  If you have beneficiaries on that IRA, then the beneficiaries listed on the IRA account receive the money and the beneficiaries named in the Will get none of it!  So many people believe the Will controls everything, and unfortunately, if you get your documents online, you will not be educated on what happens to each asset that comprises your estate.

What if you own property in multiple states?  Chances are you were not advised by the online website that you will have to likely do probate in each state you own property.  To avoid this common situation, often times estate planning attorneys will employ trusts so that ownership of those properties are consolidated into the Trust.  That way, upon the death of the owner, the Trustee can sell the properties and does not have to go through the probate/ancillary probate process in each state the Decedent owned property.

Estate planning can be a very complicated area of the law.  Before going online to print off your documents, ask yourself, if I needed open heart surgery, would I go to WebMD to get the “how-to” instructions?  Not likely, so why go online to get the how-to instructions to complete your own estate documents?  Instead, call ERA Law Group, LLC at (410) 919-1790 today!

#TuesdayTips: Financial Powers of Attorney – To Be or Not to Be?

The purpose of most powers of attorney is to authorize your named agent to act on your behalf when you are incompetent or unable to make decisions yourself.  So, if your plan is to wait until you need the power of attorney before talking to your named agent, likely, it is too late.   

That is a valid question.  One that is not pondered enough and often results in a family member being thrown into a position of great responsibility without any direction or idea how they are to act or what they are to do.  In fact, most people sign power of attorney documents naming someone, but then never tell them or have a conversation with that person about what will be expected of them.

Instead, they leave the attorney’s office feeling relieved that they have a plan in place in the event something happens to them, and as soon as they get home, shove those documents into a filing cabinet, drawer or safe (not even telling anyone where they are located), knowing that when the time comes, they will let the named individual know.  Except, the purpose of most powers of attorney is to authorize your named agent to act on your behalf when you are incompetent or unable to make decisions yourself.  So, if your plan is to wait until you need the power of attorney before talking to your named agent, likely, it is too late.

The conversation needs to happen before naming anyone as your power of attorney so you can pick the right individual for the job (and it is a job, make no mistake).  Generally, a financial power of attorney authorizes your agent to manage your finances, and specifically itemizes everything your agent is allowed to do on your behalf.  However, a power of attorney does not list your assets or provide instructions regarding how those assets should be managed.  Only you know that.

 

Thus, it is imperative that you let your agent know about every asset you own – real estate, personal property, bank accounts, mutual funds, stocks, bonds, life insurance policies, retirement accounts, trusts, etc.  Where the assets are located, what company or institution holds them, how they are titled, and their values also should be disclosed to your agent.  Your agent should also know your sources of income and when you receive your income so they can pay bills accordingly.

Additionally, you should tell your agent what your wishes are in the event you require long-term care.  Do you want your assets used to keep you at home, or would you want them preserved for your beneficiaries?  Either way, your agent will be in charge and if assets need to be liquidated, are there certain assets that he or she should liquidate first?  These and many more decisions should be made and discussed with your power of attorney.

Being a financial power of attorney requires a lot of organization, work and time.  It is a commitment that cannot be taken too lightly.  You should choose a power of attorney that is trustworthy and has the time available to devote to managing your assets.  And please, make sure your power of attorney knows what you have and what you want done with it.  Call ERA Law Group, LLC today at (410) 919-1790!

 

#TuesdayTips: Effective Estate Planning

A proper estate plan should provide for the following: (1) the ability to control your property while you are alive and able, (2) planning for you and your loved ones should you become disabled, and (3) after you die, making sure your assets go to the people you love without unnecessary cost or delay. 

A proper estate plan should provide for the following: (1) the ability to control your property while you are alive and able, (2) planning for you and your loved ones should you become disabled, and (3) after you die, making sure your assets go to the people you love without unnecessary cost or delay.  Moreover, for an estate plan to be effective there needs to be proper asset ownership and control of the process.

Every person over the age of eighteen, at the very least, needs a financial power of attorney, a health care power of attorney, and a will.  The powers of attorney are for when you are alive but for whatever reason, are unable to manage your assets or make medical decisions for yourself.  Additionally, the health care power of attorney should include your wishes and instructions for life sustaining treatment should you be terminally ill, in a persistent vegetative state, or at the end-stage of a condition.  These powers of attorney terminate upon your death.  At that time, the will takes effect and your assets would be distributed in accordance with the terms of the will.

In addition to the powers of attorney and will, every estate plan should include long-term care planning.  With the advance of medicine, people are living longer; yet, most of us have not made ample provision for our future long-term care needs.  Creating an estate plan now ensures that you are in control of your future.

With that in mind, here are some questions you should consider:

  1. Do your current documents name individuals that you trust and who would be appropriate (e.g. a family member or other trustworthy person who lives nearby and who has the time and ability)? Have you named alternates?
  2. Does your financial power of attorney allow your agent to engage in asset preservation or long-term care planning?
  3. Who are the current beneficiaries under your will? Are they still alive?  Do you have alternates?
  4. Have you made provision for an underage beneficiary? Does your will provide for a disabled beneficiary?
  5. How are your assets titled and do they have beneficiary designations? If so, you need to review this information to make sure it coincides with your will.

The attorneys at ERA Law Group, LLC today are here to help.  Call today!