Guardianships

Big Changes, Critical Decisions: Divorce and Estate Planning.

This week, I was visiting with a client of mine who has been married more than once. The questions that this client had for me centered around whether there was anything that needed to be done in her estate planning after a divorce.

The fact is, there is a great deal that must be considered when a divorce takes place. Getting a divorce decree from the courts is only the beginning. Here are some things that should be dealt with as soon as possible after a divorce that can have a major impact on your estate planning:

1. You should carefully review your guardianship nominations for your minor children in your will or other legal documents and update them if necessary. This ensures that should something happen to you, your children will end up with the caregivers that you would prefer. Often, a divorce drastically changes your previous views on this issue.

2. Update your Health Care decision documents. In Utah, you should execute a new Advance Health Care Directive that helps you to designate whom you would want to make health care decisions for you if you were incapable of doing so. Often, these documents have not been changed after a divorce and in an emergency, and an ex-spouse is contacted about health care decisions by the doctors. This is exactly what happened in the case of Gary Coleman here in Utah. His ex-spouse was still named as the health care agent in his legal documents. Thus, she made decisions about his health care. And even though that may have been what Mr. Coleman would have wanted, it is still unclear if that was the case.

Understanding the Importance and Implications of Guardianships and Conservatorships

Often in estate planning, attorneys present the idea of guardianship and/or conservatorship as a bad thing - something to be avoided. In a perfect world, we could move through our lives from cradle to grave without such things as guardianships and conservatorships. But in order to achieve this perfect world, we have to do advance planning to provide for our own care if we become impaired or incapacitated, and we need trustworthy, responsible and financially astute family members who are willing and able to assist us. For some people, these "perfect world" conditions do exist. However, for many others, they do not.

Increasingly, attorneys run into the following situations:

1. Seniors come to us, often brought by their children or children-in-law, when mental incapacity has set in, and although they appear to have willing and able family members who can take care of them, assist with making personal care and living decisions, or manage their finances, the seniors do not have the necessary delegation documents in place to empower these helpers as their agents.

2. Seniors have documents in place, but the people named are dead or no longer available, willing or appropriate to serve.

3. The people who the senior trusted and anticipated would be appropriate have become exploitive and abusive to them.

4. Seniors have been conned into paying for, or agreeing to pay for, fraudulent products and/or services.

Sorry Folks, That Ship Has Sailed

It is not uncommon for my office to receive a call from a panicked family member of an elderly individual. The call may go something like this:

Caller: Hi, I'm calling to see how much it costs to get some estate planning done for my mom.

Paralegal: We'd be happy to help you if we can. Why don't you first tell me a little bit about your mom.

Caller: Okay. Well, mom's not doing too well these days. She's in an assisted living facility and mostly doesn't recognize us anymore. Although she sometimes has good days, most of the time she's confused and is asking for her husband who died three years ago.

Paralegal: Okay. What kind of property does your mom have?

Caller: Well, she has a home that's paid for. She has a brokerage account, a checking and savings account, some farm land in Tooele and I think she has some municipal bonds that she invested in once. But I'm not really sure.

Paralegal: Does your mom know what property she owns and does she understand its value?

Caller: Oh heavens no! She put me on her checking account years ago because she was so overwhelmed with trying to manage her finances. I don't think she has a clue how much she owns, nor could she keep it straight even if we told her.

Paralegal: I think we can help you, but you'll need to meet with an attorney to discuss some of the legal implications of your mother's situation.

Although this above excerpted conversation is a fictitious example, and a very abbreviated one at that, it illustrates a trap that many people fall into with regard to estate planning.

Dad's Driving is Scaring Me!

We've all seen it before, a huge Lincoln Town car weaving down the road, with little more than a tuft of purple hair or a shiny, hairless head just barely peeking over the steering wheel. As parents and grandparents age, driving can become much more difficult for them as vision worsens, reaction times slow down, and the potential for heart attacks, strokes or other sudden physically debilitating illnesses become more likely.

Often, I have children with elderly parents come into my office and tell me "We need to take away dad's/mom's license. Can we?"

Special Planning for Special Needs, Part II

Last week, I introduced you to Special Needs Planning and Special Needs Trusts. This week, I'd like to talk about a very important distinction between the two main types of Special Needs Trusts and why it is critical that you know the difference.

Kinds of Special Needs Trusts

There are basically two types of Special Needs Trusts: 1) "First Party" Special Needs Trusts, and 2) "Third Party" Special Needs Trusts.

A First Party Special Needs Trust (also called a "Self-settled" or "Self-created" Special Needs Trust) is a trust established with assets that belong to the person with disabilities. Typically, these assets come in the form of personal injury settlements or judgments, inheritances, lump sum Social Security payments, or other funds belonging directly to the person with disabilities.

Special Planning for Special Needs, Part I

Families who have children with special needs have very little exposure to the legal issues that surround planning for these children. Just as with any type of estate planning, unless we take control and make our own plan that fits our unique family circumstances, the state has its own backup plan for our families. And often, it's not what you would have wanted.

"Who will care for my loved ones when I'm gone?" is something every parent worries about. But for parents of special needs children, this worry can be even more acute.

For families of special needs children, planning for the future involves thinking about a lifetime of care like: where the child will live, if they will have adequate financial resources to support themselves, and who will be involved in their day-to-day care. Answering questions like these requires a comprehensive planning process called Future Care (or Special Needs) Planning.

Kids Protection Planning

Blog post by Melissa Platt, Esq.

On a return trip from St. George last month, I was forcefully reminded how life can change in the blink of an eye. We were traveling northbound on I-15, just south of Cedar City. The boys were totally absorbed in a He-Man cartoon, Audrey was sleeping peacefully, and RobRoy and I were talking about the Utah State Bar Spring Convention, where RobRoy had given a presentation earlier in the day.

When RobRoy suddenly gasped, “Oh, no!” I looked up to see a cloud of dust and a white minivan in the air above the two-lane interstate. The minivan landed into on-coming traffic about

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