Category: Guardianship

Essential Legal Documents Graduating Seniors Need

Essential Legal Documents Graduating Seniors Need

As new legal adults transition from high school to college or the workforce, they must understand the significance of having essential legal documents in place. There are some essential legal documents graduating seniors need. These documents can protect their interests and ensure their wishes are respected, especially in unexpected situations.

Many young adults think estate planning is only for older people, but it’s crucial for everyone. Once young adults turn 18, they are legal adults, and parents or guardians no longer have authority over their health or financial accounts or information. Accidents and illnesses can happen at any age, and having the right documents can make a big difference.

There are five essential legal documents that every young adult should have:

  • Healthcare Proxy: This document allows a trusted person to make medical decisions on your behalf if you can’t communicate your wishes. Choosing a reliable and nearby person is important for making quick decisions if needed.
  • HIPAA Authorization: This gives certain people access to your medical records. Without it, your loved ones might not be able to get the information they need to help you in a medical emergency.
  • Durable Financial Power of Attorney: This lets someone manage your finances if you cannot do so yourself. It can help ensure your bills are paid, and your finances are handled properly if you’re incapacitated.
  • Living Will: This outlines your medical treatment and end-of-life care preferences. It helps your family know your wishes regarding life support and other critical decisions.
  • Preneed Guardian Designation: This appoints someone to care for you or your dependents if you cannot do so. For young parents, it ensures that their children are cared for without waiting for court appointments.

Consider the story shared by the Financial Planning Association about a young adult who was in a car accident. Despite being healthy and active, the accident left them unable to make decisions.

However, they had a healthcare proxy and a durable financial power of attorney. This enabled their family to step in and make medical and financial decisions on their behalf. Good estate planning can make hard times a little more manageable, even for young and healthy people.

Without these essential documents, your family might face delays in managing your affairs. Courts could appoint someone to make decisions for you. While this may work out, there’s no guarantee a court-appointed agent’s views would align with your wishes. Being unprepared can make difficult times even more stressful and challenging.

Creating these documents is easier than you might think. Here are some steps to get started:

  • Talk to Your Parents or Guardians: Discuss your plans and get their input on who your healthcare proxy or financial power of attorney should be.
  • Consult an Attorney: Seek advice from an estate planning attorney who can draft these documents to ensure they meet legal requirements and accurately reflect your wishes.
  • Store Documents Safely: Keep your documents in a safe place, and make sure that your designated proxies know where to find them.
  • Review Regularly: Life changes might require updates to your documents. Events such as moving to a new state, getting married, or having a child should prompt you to revisit your documents.

If you’re a young adult or a parent of one, now is the time to start thinking about these essential legal documents graduating seniors need. If you would like to learn more about planning for young adults, please visit our previous posts.  

Reference: Financial Planning Association (Oct. 2023) “Essential Estate Planning for Young Adults”

Photo by Karolina Kaboompics

 

The Estate of The Union Podcast

 

Read our Books

 

Managing a Big Age Gap in Estate Planning

Managing a Big Age Gap in Estate Planning

Even if it was never an issue in the past, managing a big age gap in your estate planning can present challenges. When one partner is ten or more years younger than the other, assets need to last longer, and the impact of poor planning or mistakes can be far more complex. The article in Barron’s “Big Age Gap With Your Spouse? What You Need to Know” explains several vital issues.

Examine healthcare coverage and income needs. Health insurance can become a significant issue, especially if one partner is old enough for Medicare and the other does not yet qualify. How will the couple ensure health insurance if the older partner retires and the younger depends on the older partner for healthcare? The younger partner must buy independent healthcare coverage, which can be a budget-buster.

Be strategic about Social Security. Experts advise having the older spouse delay taking Social Security benefits if they are the higher-income partner. If the older spouse passes, the younger spouse can get the bigger of the two Social Security benefits. Delaying benefits means the benefits will be higher.

Planning for RMDs—Required Minimum Distributions. Roth conversions may be a great option for couples with a significant age gap. Large traditional tax-deferred individual IRAs come with large RMDs. When one spouse dies, the surviving spouse is taxed as a single person, which means they’ll hit high tax brackets sooner. However, if the couple converted their IRAs to Roths, the surviving spouse could withdraw without taxes.

Estate planning becomes trickier with a significant age gap, especially if the spouses have been married before. Provisions in their estate plan need to be made for both the surviving spouse and children from prior marriages. An estate planning attorney should be consulted to discuss how trusts can protect the surviving spouse, so no one is disinherited. Beneficiary accounts also need to be checked for beneficiary designations.

Couples with a significant age gap need to address their own mortality. A younger partner who is financially dependent on an older partner needs to be involved in estate and finance planning, so they know what assets and debts exist. Life has a way of throwing curve balls, so both partners need to be prepared for incapacity and death.

Managing a big age gap in your estate planning really requires careful and consistent review of your planning. Plans should be reviewed more often than for couples in the same generation. A lot can happen in six months, especially if one or both partners have health issues. If you would like to learn more about estate planning issues for older couples, please visit our previous posts. 

Reference: Barron’s (May 19, 2024) “Big Age Gap With Your Spouse? What You Need to Know.”

Photo by Rodrigo Fabian Barra

 

The Estate of The Union Podcast

 

Read our Books

Diverse Family Structures Have Unique Estate Planning Challenges

Diverse Family Structures Have Unique Estate Planning Challenges

American family law has traditionally focused on the nuclear family. However, Forbes reports that only 18% of American adults now fit this model. There are many new types of families today, such as blended families, single-parent households and LGBTQ+ families. Dated legal definitions of family could be a hurdle in your estate planning. Diverse family structures have unique estate planning challenges. However, it’s a hurdle you can overcome with knowledge and legal guidance.

Most legal protections and rights cater to the assumption that a family is a married couple with blood children. This alone creates obstacles for many families, even those that look traditional. Many heterosexual couples have children but haven’t yet married. This can deprive them of various rights and may exclude partners from inheritance.

Blended families with stepchildren also frequently struggle with inheritance. If the parents fail to lay out the rights of the children, it can go to a lengthy probate process. Likewise, the children of single parents face a uniquely uncertain future should their parents die unexpectedly. Another diverse family type that frequently struggles with family law is LGBTQ+ families. The rights of same-sex couples vary widely by state, which makes estate planning especially important for them.

These diverse families and more can find themselves underserved by laws that don’t have them in mind. However, that doesn’t mean that their wishes must go un-respected. There are many estate planning tools available that can help people clarify and execute their wishes once they’re gone.

Advanced estate planning techniques can give anyone greater control of their estate.  Everyone with a significant estate or minor children should have an estate plan. However, diverse families need to use these tools to safeguard their wishes.

  • Wills: A well-drafted will is Step One. It makes it far easier to ensure that your assets go to your inheritors as you wish.
  • Trusts: Trusts offer greater control over asset distribution while avoiding will-related pitfalls. Living trusts can be adjusted during one’s lifetime, while irrevocable trusts protect assets but are permanent.
  • Powers of attorney: Financial and healthcare powers of attorney let a trusted person decide if the primary individual is incapacitated.
  • Testamentary guardianship: Single-parent, blended families and same-sex couples should appoint guardians for minor children in their wills.
  • Beneficiary Designations: Designate the beneficiaries for life insurance, retirement and investment accounts. This ensures that the executor of your will transfers assets according to your wishes.

The evolving definition of family challenges conventional estate planning. Unmarried couples, blended families and other non-traditional arrangements often need tailored estate plans. However, untangling estate law on your own isn’t easy.

Diverse family structures have unique estate planning challenges. Schedule a consultation with an estate planning attorney, who will address local laws and your unique family structure, to craft a comprehensive estate plan. If you would like to learn more about planning for blended families, please visit our previous posts.

Reference: Forbes (April 2, 2024) How Expanding The Legal Definition Of Family Helps Us All

Image by miltonhuallpa95

The Estate of The Union Podcast

 

Read our Books

 

Alternatives to Avoid Guardianship as You Age

Alternatives to Avoid Guardianship as You Age

Individuals often overlook strategies in their estate planning to avoid restrictive guardianship if they become incapacitated. While guardianship protects individuals who cannot decide or act for themselves, it can inadvertently strip them of their autonomy. There are alternatives to avoid guardianship as you age.

The restrictive nature of a court-appointed guardian acting on behalf of an impaired individual doesn’t account for that person’s wishes. In a video titled “Alternatives to Guardianship,” The American College of Trust and Estate Counsel (ACTEC) highlights essential guardianship alternatives that preserve a person’s autonomy. This article discusses the need for protection as we age, what guardianship is and how powers of attorney (POAs) are alternative estate planning strategies that give individuals more control over decision-making.

Aging and estate planning go hand-in-hand. Estate plans with strategies that address cognitive decline and incapacity protect you from financial risks, including misuse of assets or unauthorized withdrawals. When it comes to healthcare, individuals must retain control over medical decisions. They may not be honored if you are incapacitated without legally documented healthcare wishes.

Guardianship involves the legal authority granted to a court-appointed guardian to act and make decisions for a person who is physically or mentally incapable. The guardian oversees the person’s health, medical care and property. When an individual is evaluated and deemed incapacitated, a court will assign a guardian.

A guardian’s responsibilities include making personal care decisions, overseeing living arrangements and handling their financial affairs. They are required to keep detailed records and check in with the court regularly.  However, guardianships are often appointed without considering alternatives, and they strip an individual of all decision-making authority, including where they live, what they eat and whether they will get any medical care. ACTEC notes that guardianship can be hurtful to the family, in addition to being an expensive process.

A power of attorney (POA) is a legal document that appoints someone you trust to act on your behalf. Only a durable power of attorney is valid if you are incapacitated. There are different POAs to protect your financial interests and medical wishes.

To prevent financial risks if you are incapacitated, a financial power of attorney names an agent with authority over financial matters, such as accessing bank accounts, paying bills and managing retirement accounts, real estate and investments.

A medical power of attorney is a healthcare or advance directive that allows someone else to make medical decisions based on your wishes. Often called a health care agent, this person follows your medical treatment as outlined in the document.

Key Guardianship Alternatives Takeaways:

  • Common Risks as We Age: Financial loss and unwanted medical care.
  • Typical Cons of Guardianship: Total loss of autonomy with court-appointed guardians.
  • Important Benefits of POAs: More control of your wishes and asset protection.

Elder law and estate planning strategies that protect you as you age should not be synonymous with surrendering autonomy through guardianship. Individuals can confidently navigate this terrain by exploring alternatives to avoid guardianship as you age. If you would like to learn more about guardianships, please visit our previous posts. 

Reference: The American College of Trust and Estate Counsel (ACTEC) (May 13, 2021) “Alternatives to Guardianship”

Photo by Mike Jones

 

The Estate of The Union Podcast

 

Read our Books

Essential steps for Gen Xers caring for Aging Parents

Essential steps for Gen Xers caring for Aging Parents

Raising children is expensive. Adding medical or living costs for aging parents is enough to strain even a healthy family budget. The additional expenses of caring for an aging parent or parents can take a turn if a parent passes away or is incapacitated without a will or estate plan to guide the family. An estate plan or other legal documents, such as an advance medical directive and powers of attorney, enable trusted representatives to decide and act according to a parent’s wishes. A proactive estate plan can help alleviate financial burdens and smooth aging parents’ path into retirement for both generations. Here are six essential steps for Gen Xers caring for their aging parents:

Based on Kiplinger’s article, “What Gen X Needs to Know About Their Aging Parents’ Finances,” this article outlines steps in estate planning for your parents’ financial future through retirement and their quality of life as they age.

Understand your parents’ financial landscape. Identify their assets, including retirement accounts, investments, real estate and bank accounts. List their debts, from home mortgages to credit card balances—a comprehensive view of their financial health aids in planning their future needs. Consider guidance from an estate planning attorney for a more customized approach.

Familiarize yourself with your parents’ income sources, such as Social Security, pensions and additional retirement income streams. Know their financial inflows, gauge their ability to cover expenses and plan for any shortfalls effectively.

Ask your parents if they have an estate plan, including wills, trusts and other legal documents outlining their wishes for beneficiaries and asset distribution. If they do, is it comprehensive enough for long-term care, medical decisions if they are incapacitated and Medicaid? Address these topics early and facilitate additional planning, so their wishes are honored.

Anticipate future healthcare expenses and discuss potential long-term care needs with your parents. Do they have health issues and medication costs to save money for? Develop strategies to cover these costs through insurance, savings, or income-producing investments. Planning can mitigate financial stress and provide access to quality care in retirement. Consult an attorney to discuss Medicaid planning and avoid delays in the application process.

Family members worry more about scammers and the misuse of an older adult’s money today than in previous generations. Protect your parents from financial exploitation. Consider living trusts or powers of attorney, authorizing trusted family members to act and decide in your parents’ best interests, if necessary.

Seek guidance from a financial adviser and an estate planning attorney for retirement planning and intergenerational wealth transfer strategies. Collaborate with them to develop comprehensive strategies that address your parents’ financial needs, while safeguarding your retirement savings.

Proactive Gen Xers caring for aging parents can use these essentials steps to alleviate financial burdens and provide peace of mind for both generations. They can support aging parents as they plan for the family’s financial needs and future. If you would like to learn more about caring for aging parents, please visit our previous posts. 

Reference: Kiplinger (June 5, 2023) “What Gen X Needs to Know About Their Aging Parents’ Finances.”

Photo by cottonbro studio

 

The Estate of The Union Podcast

 

Read our Books

Understanding how a Guardianship and Conservatorship Contrast

Understanding how a Guardianship and Conservatorship Contrast

Guardianship and conservatorship are two legal mechanisms designed to assist individuals who cannot manage their own affairs. While they share similarities, understanding how a guardianship and conservatorship contrast is vital. Guardianship typically pertains to personal and health care decisions, while conservatorship deals with financial matters. Both require court appointment and carry significant responsibility.

Guardianship involves the legal authority granted to a guardian to make decisions on behalf of a person who is unable to do so. This typically pertains to personal, health and welfare decisions. A court appoints a guardian when an individual is deemed incapacitated, and the guardian may have to make a wide range of personal decisions for them. A guardian has significant responsibilities, including making personal care decisions, overseeing living arrangements and ensuring the overall well-being of their ward. They must keep detailed records and report to the court regularly, demonstrating that they are acting in the best interests of the ward.

In cases involving minor children, guardianship becomes essential when parents are unable to provide care. The guardian, appointed by the court, assumes responsibility for the child’s personal needs and welfare, acting in their best interests. This is often seen when parents are unable or unwilling to care for their child or in the event of the death of the parents.

Conservatorship, on the other hand, is primarily focused on financial matters. A conservator is appointed to manage the financial affairs of an individual who is unable to do so themselves, due to incapacity or other reasons. This includes managing a person’s assets, making investments and handling financial decisions. In conservatorship proceedings, the court appoints a conservator to oversee the financial needs of the incapacitated individual. The conservator must act responsibly and is often required to provide the court with periodic financial reports.

While a guardian manages personal and medical decisions, a conservator handles the financial aspects, such as personal and financial records, asset management and financial planning. This distinction is crucial in understanding the roles and responsibilities each holds.

The legal authority granted to a guardian differs from that of a conservator. A guardian makes personal and medical decisions, while a conservator focuses on financial and asset management. This division ensures that all aspects of an individual’s life are cared for adequately. Both guardians and conservators are appointed by the court and must act in the best interests of their wards. They are supervised by the court and must provide regular reports to demonstrate their compliance with legal responsibilities.

Incorporating guardianship and conservatorship into an estate plan is crucial. An estate plan can appoint a guardian or conservator in advance, providing clarity and direction in the event of incapacitation. Including a power of attorney in your estate plan can preempt the need for a court-appointed guardian or conservator. This allows you to choose who will make decisions on your behalf, if you become unable to do so.

An effective estate plan, including wills and power of attorney, can provide peace of mind and ensure that your wishes are honored. It prepares for scenarios where you might be incapacitated, ensuring that your personal and financial matters are in trusted hands. Navigating the complexities of guardianship and conservatorship can be challenging. A lawyer can help you understand how a guardianship and conservatorship contrast. The assistance of an estate planning or elder lawyer is invaluable in understanding your options, the legal process and ensuring that your loved one’s needs are met.

Each situation is unique, and a lawyer can provide tailored advice depending on your specific circumstances. They can help you navigate the legal system, ensuring the best outcome for you and your loved ones. If you would like to learn more about guardianship, please visit our previous posts. 

Photo by Ivan Samkov

 

The Estate of The Union Podcast

Read our Books

Appointing a Trust Protector is a Critical Decision

Appointing a Trust Protector is a Critical Decision

Serving as the trustee of a special needs trust (SNT) can be particularly challenging because it often requires long-term financial management of the trust, while maintaining a good relationship with the beneficiary. Furthermore, because trustees wield great financial power over the trust assets, oversight of their investment and distribution decisions is helpful. Trust protectors can add an additional layer of protection to oversee the management of a trust, supervise the trustee’s actions and remove and replace the trustee when needed. This article delves into why appointing a trust protector is a critical decision that can significantly impact the management of a SNT and guard the beneficiary’s rights.

The Case of Senator Feinstein: A Cautionary Tale

U.S. Sen. Dianne Feinstein’s lawsuit against the trustees of her late husband Richard Blum’s trust, as related in The Hill’s article, “Feinstein accuses trustees of husband’s estate of financial abuse”, highlights one reason why a trust protector may be helpful. Before her death in September 2023, Feinstein accused the trustees of withholding funds and breaching their fiduciary duties.

Through three separate lawsuits, Feinstein claimed that the trustees breached their fiduciary duties to honor the terms of the trust by not making the anticipated distributions of $5 million that were supposed to be placed into her trust in quarterly installments. She argued that the trustees’ inaction in their administration of the trust was intended to benefit Blum’s daughters at her expense, who were slated to receive $22 million each from the trust without Feinstein’s distribution.

For the late Sen. Feinstein, a trust protector may have provided the needed control over the trust assets to leverage the distribution intended by her late husband, who was the settlor. In the context of a special needs trust, where disabled beneficiaries may not be able to supervise their trustees, the role of a trust protector becomes even more critical in managing the trust.

What is a Trust Protector?

Special Needs Alliance explains in the article “Trust Protectors for Special Needs Trusts” that a trust protector is a person appointed to oversee the actions of the trustee and ensure that a trust is administered in line with the settlor’s intentions. Suppose a trustee performs in a manner that is unsatisfactory or even mismanages the trust assets. In that case, the trust protector can be empowered by the trust document to replace that person with a successor trustee. This role is particularly important in special needs trusts, where beneficiaries might not fully understand or be able to manage their financial affairs due to the nature of their disabilities.

How Does a Trust Protector Oversee the Trustee?

A trust protector works alongside the trustee, providing an extra layer of oversight in managing the trust assets according to the instructions in the trust document. They can resolve disputes, guide trustees and ensure that the trust’s administration aligns with the settlor’s intent. Trust protectors are granted various powers, including the ability to review trustee actions, including distribution decisions, replace the trustee and amend trust terms to adapt to changing laws and beneficiary needs. Their primary responsibility is to act in the best interests of the beneficiaries.

How Do Grantors Choose the Right Trust Protector?

Naming a trust protector involves considering their expertise, impartiality and understanding of the beneficiary’s needs. A third party, such as an attorney, accountant, or other professional, can often serve in this role. Family members who may be too challenged by the role of trustee also make a good choice for the trust protector. Selecting a family member who has a good relationship with the beneficiary, understands the nature of their disability and can serve as a good mediator between the trustee and beneficiary is a wise choice.

What Role Do Trust Protectors Play in Special Needs Trusts?

In special needs trusts, trust protectors play a vital role in ensuring that the trust caters to the unique needs of the beneficiary, considering their disability and inability to manage financial affairs. Their role can vary based on the trust agreement terms and state laws. The trust protector can review financial decisions or investments and sometimes force large distributions for purchases, like a house or car, based on the impact on the beneficiary. They can also help the beneficiary understand financial statements and tax documents provided by the trustee.

Is a Trust Protector Also Important to Consider for General Estate Planning?

Appointing a trust protector into any trust is a critical decision. It adds an extra layer of protection and adaptability, ensuring that the trust remains effective and relevant over time. Only a few states have specific laws authorizing and regulating trust protectors. Therefore, it’s essential to work with an experienced estate planning attorney to carefully draft the trust to define the role and anticipate potential issues in exercising the power of the trustee or trust protector.

The Future of Trust Protectors in Estate Planning

As laws and family dynamics evolve, the role of trust protectors is becoming increasingly important in estate planning, offering flexibility and protection for beneficiaries.

Conclusion

Trust protectors offer an essential safeguard in trust administration, especially for special needs trusts. Their oversight ensures that the trust remains effective, adaptable and true to the settlor’s intentions, providing peace of mind for both settlors and beneficiaries.

  • Trust protectors provide essential oversight and adaptability.
  • They ensure that the trust’s administration aligns with the settlor’s intent.
  • Their role is crucial in special needs trusts for beneficiaries who cannot manage their affairs.
  • Trust protectors are becoming increasingly important in modern estate planning.

If you would like to learn more about trust protectors, and trusts generally, please visit our previous posts. 

Photo by Mike Bird

 

The Estate of The Union Podcast

 

Read our Books

Navigating Advance Directives in Dementia Care

Navigating Advance Directives in Dementia Care

Navigating the complexities of advance directives in dementia care is one of the biggest challenges for caregivers. The concept of advance directives in healthcare is both a cornerstone of patient autonomy and a source of profound ethical dilemmas, particularly in the context of dementia. This was poignantly illustrated in a recent New York Times article by Dr. Sandeep Jauhar, who shares his personal story about his father’s battle with dementia. This article delves into the complexities surrounding advance directives, especially for patients with dementia, and offers guidance for families grappling with these challenging decisions.

Understanding Advance Directives

Advance directives are legal documents that allow individuals to outline their preferences for medical care if they cannot make decisions for themselves. These directives are crucial in ensuring that a patient’s wishes are respected, particularly at the end of life. However, when it comes to progressive conditions like dementia, the clarity of these directives often becomes blurred.

The Dilemma in Dementia Care

Dementia uniquely challenges the concept of advance directives. As Dr. Jauhar describes, the person who made the directive may evolve into someone with different desires and capacities. This transformation raises the question: should we honor the wishes of the person who drafted the directive, or should we consider the current state and apparent desires of the patient?

Ethical Considerations

This situation presents a significant ethical dilemma. On the one hand, there’s the principle of respecting the patient’s autonomy as expressed in their advance directive. On the other hand, there’s the issue of non-maleficence — the duty to do no harm — which could conflict with a directive when a patient seems content in their current condition despite severe cognitive impairment.

The Role of Family and Caregivers

Families and caregivers often find themselves at the heart of this conflict. They must balance respect for the patient’s previously stated wishes with empathy for their current state. Effective communication among family members and healthcare providers is crucial in navigating these decisions.

Legal and Medical Perspectives

Advance directives legally are typically held as the definitive expression of a patient’s wishes. However, the medical community is increasingly recognizing the need for flexibility, especially in the context of diseases like dementia that significantly alter a patient’s cognitive and emotional state.

Rethinking Advance Directives

There’s a growing consensus that advance directives need to accommodate the possibility of changing perspectives, especially for conditions that affect cognitive function. This could involve incorporating specific clauses about cognitive decline or changing desires in the directive.

Practical Advice for Families

Families should approach advance directives as dynamic documents. It’s essential to regularly revisit and potentially revise these directives, considering the patient’s evolving health status and wishes. Open discussions about end-of-life preferences are crucial, as is seeking advice from healthcare professionals and legal experts.

Conclusion

The journey through a loved one’s dementia, as Dr. Jauhar’s story illustrates, is fraught with complexities and emotional challenges. While respecting a patient’s past wishes is crucial, so is recognizing their present state and evolving desires. The balance between these perspectives is delicate but fundamental in end-of-life care.

Empathy, understanding, and open communication remain our most powerful tools as we continue to confront these issues. It’s imperative to not only consider what was desired in the past but also to remain sensitive to the needs and happiness of the patient in their current state.

For those seeking guidance navigating advance directives, especially in the context of dementia care, it is advisable to consult with a local estate planning attorney. These professionals can provide invaluable assistance in drafting and updating advance directives to reflect your or your loved one’s evolving wishes and medical circumstances. Reach out to your local estate planning attorney today to ensure that your advance directives are consistent with your current desires and legal standards. If you would like to learn more about advance directives, please visit our previous posts. 

Reference: New York Times“My Father Didn’t Want to Live if He Had Dementia. But Then He Had It.” by Dr. Sandeep Jauhar.

Photo by Jsme MILA

 

The Estate of The Union Podcast

 

Read our Books

Estate Planning is increasingly Popular with Millennials

Estate Planning is increasingly Popular with Millennials

Estate planning is increasingly popular with millennials. It is far from the stereotype of being only of interest to older, affluent couples nearing retirement or dealing with health concerns. These younger generations have unique attributes, including pragmatic financial views and humanitarian concerns, according to a recent article, “Six Estate Planning Tips for Younger Generations,” from Kiplinger. Here are tips to make this process easier for any generation.

Start with a basic will, which guides how assets and possessions are distributed after one’s passing. Prepared by an experienced estate planning attorney, the will should minimize potential disputes, include a clear delineation of assets and beneficiaries and name an executor to manage the estate and guardianship for any surviving dependents.

Appoint a power of attorney and draft medical directives. Power of Attorney and Medical Directives are basic documents that state your preferences during incapacity. A POA grants a named individual the legal authority to act on your behalf for legal and financial matters, if you cannot do so. Medical directives establish your wishes regarding medical treatment and end-of-life care. While taking care of these matters, you may also want to consider becoming an organ donor.

Determine who you want to be your children’s guardian. Naming a guardian of your minor children isn’t pleasant. However, it ensures that you and your partner make this decision, not the court.

Consider a living trust. Living trusts offer a strategic means of managing assets and helping to ensure that your surviving loved ones maintain control of your assets after you have passed. The trust, established with the help of an estate planning attorney, grants ownership of certain assets or properties into the trust, which becomes their owner. A trustee is named to manage and distribute these assets in accordance with your wishes. In some instances, it makes sense to hire a professional trustee, especially if the trust will need to be managed for decades.

By taking assets out of your estate and placing them into a trust, these assets won’t go through the probate process. Probate involves your executor filing your will with a court after you die. The court reviews the will to validate it and grants the named executor the power to execute your final instructions. Probate can be lengthy, expensive and emotionally charged for the family. Your will is entered into the public record, so anyone who wants to can see your will and know your final wishes.

Don’t forget your digital assets. Younger generations are more aware of the value and footprint of their digital assets. They often name a specific digital executor in their estate plans to ensure that their many accounts and digital assets are managed after their passing.

Seek professional advice and update documents. Despite a plethora of online sites and apps, estate planning documents require the skillful handling of an experienced estate planning attorney. Estate laws are state-specific, so wills and trust documents must be created with local laws in mind. Your estate plan documents, from wills to insurance policies, should be reviewed every three to five years. Every time there’s a significant change in your life, like getting married, buying a home, having a child, or getting divorced, this should also be done.

As estate planning becomes increasingly popular with Millennials, it is wise to consult with an experienced attorney familiar with the lifestyle and concerns of younger generations. If you would like to read more about estate planning for younger generations, please visit our previous posts.

Reference: Kiplinger (Dec. 3, 2023) “Six Estate Planning Tips for Younger Generations

Image by Sammy-Sander

 

The Estate of The Union Podcast

 

Read our Books

Tips to protect Seniors from Guardianship Abuse

Tips to protect Seniors from Guardianship Abuse

Issues Inherent in the Guardianship System

Elder law attorneys see firsthand the complexities and potential pitfalls of guardianship arrangements. The recent investigation into guardianship practices in Florida, as reported by the Washington Post, underscores the urgent need for vigilance and reform in this area. While guardianships are designed to protect the vulnerable, they can sometimes lead to significant abuses, including forced isolation and financial exploitation. This article aims to shed light on the complexities of the guardianship system, expose issues related to guardian-inflicted elder abuse. It will also provide practical tips to protect seniors from guardianship abuse by planning before becoming incapacitated.

What Is Guardianship?

Guardianship is a legal process where a court appoints an individual (the guardian) to make decisions for someone deemed unable to make decisions for themselves (the ward). This arrangement is often necessary for seniors who can no longer manage their affairs due to health issues like dementia or stroke. It’s estimated that more than one million Americans are in a guardianship, a number that will only grow as the U.S. population ages and elderly people no longer have family living nearby to provide the care and protections they need.

A Cautionary Guardianship Case

Douglas Hulse, a former pilot from Florida, was hospitalized due to a stroke. After his recovery period ended and his condition did not improve, Orlando Health South Seminole Hospital could not discharge him without having an assigned caretaker. Therefore, the hospital petitioned the court to assign him a guardian due to the inability to locate his family. His loss of control over his assets and personal decisions to a court-appointed guardian is a stark reminder of guardianship risks. His guardian, responsible for 19 other wards, made questionable decisions like selling his home without seeking to locate his family.

What Role Do Hospitals have in Guardianship Appointments?

Hospitals often play a significant role in initiating guardianship proceedings. Cases like Hulse’s in which the hospital petitions for a court-appointed guardian are becoming more common nationwide, especially when elderly patients have no known family or friends to care for them. While this process is meant to ensure the patient’s well-being, it can inadvertently lead to the appointment of guardians who may not act in the best interest of the ward or, worse, will exploit the senior ward through financial abuse or other ways.

Why Is the Adult Guardianship System Allowing Abuse and Exploitation of Wards?

The discrepancies in the guardianship appointment and training process further complicate this issue. There is often a lack of standardized procedures for appointing and monitoring guardians, leading to inconsistent practices and an increased risk of abuse. This situation calls for a more rigorous and standardized approach to guardianship appointments at the state level, ensuring that only qualified and ethical individuals are entrusted with such significant responsibilities.

How Do Guardianships Put Seniors at Risk of Abuse?

The Hulse case highlights several risks associated with guardianship:

  1. Loss of Personal Freedom and Fundamental Rights: Once under guardianship, individuals may lose basic rights, such as voting, consenting to medical treatment, managing their finances, or deciding where to live.
  2. Financial Exploitation: Guardians have significant control over the ward’s assets, allowing them to access financial accounts directly and conduct financial transactions without oversight. This access can lead to mismanagement or outright theft.
  3. Lack of Oversight: Guardianships often lack sufficient legal or administrative oversight, allowing unscrupulous guardians to take advantage of their wards. Because a judge appoints guardians, they often do not face punishment or legal recourse for abusive behavior.

How to Protect Yourself From Court-Ordered Guardianship

  1. Advance Planning: The best defense against guardianship abuse is advance planning. This includes setting up durable powers of attorney for health care and finances, which allow you to designate someone you trust to make decisions on your behalf if you become incapacitated.
  2. Regular Monitoring: If guardianship is unavoidable, family members should stay involved and monitor the guardian’s actions. Regularly reviewing financial statements and staying in close contact with the ward can help detect any irregularities.
  3. Choosing the Right Guardian: If a guardian is necessary, choose someone trustworthy and capable. This could be a family member or a professional with a good reputation and credentials.
  4. Legal Oversight: Courts should have robust systems to monitor guardianships. This includes regular reporting by guardians and audits of their financial management.
  5. Awareness and Education: Seniors and their families should be educated about the risks of guardianship and the importance of advance planning. Community programs and legal clinics can provide valuable information and resources.
  6. Advocacy and Reform: Advocacy for better laws and policies around guardianship is crucial. This includes pushing for reforms that increase transparency, accountability and oversight in the guardianship process.

Key Takeaways:

  • Guardianship can lead to significant abuses, including loss of autonomy and financial exploitation.
  • Hospitals often initiate guardianship proceedings for incapacitated patients without family, which can lead to inappropriate guardian appointments.
  • Advance planning, such as establishing durable powers of attorney, helps prevent guardianship abuses.
  • There is a need for increased legal oversight and reform in the guardianship system to protect the rights and well-being of the elderly.

Utilize these tips to protect the seniors you love from guardianship abuse. Work with an experienced elder law or estate planning attorney to ensure that someone you love does not fall prey to abuse but has a legally documented estate plan to protect them and their financial well-being. If you would like to learn more about guardianship issues, please visit our previous posts. 

Photo by Danik Prihodko

 

The Estate of The Union Podcast

 

Read our Books

Information in our blogs is very general in nature and should not be acted upon without first consulting with an attorney. Please feel free to contact Texas Trust Law to schedule a complimentary consultation.
Categories
View Blog Archives
View TypePad Blogs