Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

A Member of the Law Professor Blogs Network

Wednesday, December 17, 2014

Creating a Collaborative Network When Planning for a Special Needs Child

Family3Planning for the care of a child with special needs after the current caregiver dies or is unable to continue care creates unique guardianship considerations. In addition to carefully selecting a guardian that has the needed experience, emotional strength, and financial savvy to care for the child, reaching out to a network of individuals who can provide support for the primary guardian can add additional support and protection for the child. It can be difficult to find all the desired characteristics for a well-rounded guardian in one person, and creating an informal collaborative network of support as part of estate planning can ensure the child's care is fully planned for.

See Ryan Barry, Talking to Relatives About Guardianship of a Child With Special Needs, JD Supra, Dec. 15, 2014.

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

December 17, 2014 in Estate Planning - Generally, Guardianship | Permalink | Comments (0) | TrackBack (0)

Sunday, December 14, 2014

Combating Elder Abuse

Elderly financial abuse

Elder abuse is not a commonly talked about topic, but is serious and demands attention. 

Resources such as wills, trusts, powers of attorney and guardians can be a helpful resource for individuals who have loved ones living in nursing homes or assisted living facilities.  However, these resources can also be used to hurt, abuse or neglect the very person they are intended to protect.  Fortunately, most states have laws and regulations that are designed for the protection of elderly or disabled adults.

North Carolina, for example, has established the Protection of the Abused, Neglected or Exploited Disabled Adult Act.  This act is designed to protect disabled adults.  Anyone who knows or has a reason to believe a disabled adult is being abused, neglected or exploited has a duty to report the information to the Department of Social of Services director.  Once the DSS director receives a report of possible abuse, the director performs an evaluation of the situation to determine if protective services are needed. 

Anyone involved in the abuse of an elderly or disabled person could face severe consequences.  In many states, such conduct results in that person facing felony charges.  The amount of money or property in the action typically determines the level or seriousness of the crime.  Moreover, any persons or workers in a facility who are responsible for providing care for a disabled or elderly person could be criminally charged or sued in civil court for certain actions of abuse or neglect.    

See Bellonora McCallum, Legal Corner: Protecting the Elderly From Abuse, Exploitation, Your Daily Journal, Dec. 12, 2014.

December 14, 2014 in Elder Law, Estate Planning - Generally, Guardianship, Trusts, Wills | Permalink | Comments (0) | TrackBack (0)

Monday, November 17, 2014

International Estate Planning


While estate planning is crucial for almost everyone, if you have international ties, you have even more reasons to take the time to carefully plan your estate.  Whether you are part of an international family, married to a non-citizen, or you live abroad, here are four reasons to look into international estate planning:

  1. Decrease your tax burden. Non-citizens of the United States must follow different estate tax and gift tax laws.  If you own property abroad, you could end up getting taxed twice, in two different countries.  These are just a few rules that illustrate why you should seek guidance on your international estate plan.
  2. Prevent confusion and delay. If you fail to plan your estate, the red tape could delay your loved ones in getting the support they need.  Worst case, it could prevent your loved ones from getting what you wished.
  3. Shield wealth and property. When you forego planning your estate, it is left in the hands of the government.  If you have international property, the future of your assets depends heavily on where they are located, and estate law can vary from country to country.
  4. Protect children. If you want your children to have a guardian who lives abroad, it is essential you plan your estate so your guardianship wishes are clear.  International families should appoint both a temporary and permanent guardian.

See Janet Brewer, Four Great Reasons For International Estate Planning, JD Supra, Nov. 17, 2014. 

November 17, 2014 in Estate Administration, Estate Planning - Generally, Estate Tax, Gift Tax, Guardianship, Travel | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 5, 2014

Exploitation by Court-Appointed Conservator Fuels Reform Discussion

Gavel2The exploitation of 96-year-old veteran Louis Russo by his court-appointed conservator has supporters and advocates calling for reform of how Connecticut probate courts appoint conservators. Russo was appointed a conservator that he did not know because he did not have any family that could care for him. The conservator put Russo in a nursing home instead of a veterans home, which incurred additional cost, spent his life savings and Social Security, and rented out Russo’s home without permission. Russo now has a new conservator that is working to get Russo back in his home. Advocates are calling for reform to the court-appointed conservator system, including monitoring systems, training for conservators, and requirements such as social work experience

See Rob Ryser, WWII Veteran’s Plight Brings Call for Probate Court Reform, Connecticut Post, Oct. 25, 2014.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

November 5, 2014 in Disability Planning - Health Care, Disability Planning - Property Management, Guardianship | Permalink | Comments (0) | TrackBack (0)

Monday, November 3, 2014

When Choosing a Guardian, Should Those Not Chosen Be Told?

FamilyFor parents of minor children, one important aspect of a will is to designate guardianship for the children in the event that both parents pass away while the children are still minors. This difficult and personal decision is complicated when family members or friends that expect to be the chosen guardians are not the designated guardians that the parents choose.

There are conflicting opinions on how to handle this issue. One perspective is that honesty is always the best policy, and the individual or individuals expecting to be designated should be informed that they are not. Another perspective is that since a guardianship directive in a will only goes into effect in a limited circumstance that may never happen, it is best to only tell those that are chosen to be guardians and not the rest of interested individuals. This perspective is based on the desire to not cause harm to the personal relationship with those not designated.

See Carolyn Hax, Carolyn Hax: Should Couple Explain to Kin Their Will’s Directive on Guardianship?, The Washington Post, Oct. 29m 2014.

Special thanks to Naomi Cahn (Harold H. Greene Professor of Law, George Washington University School of Law) for bringing this article to my attention.

November 3, 2014 in Estate Planning - Generally, Guardianship, Wills | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 28, 2014

Appointing a Temporary Guardian


While you may have taken the time to choose a permanent guardian for your minor children In case something happens to you and your spouse, you may have not taken the time to choose a temporary guardian.  Naming a temporary guardian is an important step towards caring for and protecting your children after you are gone.

A temporary guardian will care for your children in the direct aftermath of your passing.  In states such as California, the court must make the final determination of guardianship and until that decision is made official, a temporary guardian will serve.  The person you appoint as your temporary guardian and the person you wish to be permanent guardian may or may not be the same person.

Having a temporary guardian allows your children to be in the immediate care of someone they know and trust.  Without a temporary guardian, children may be temporarily placed in the foster care system.  Temporary guardians are also necessary if you are nominating someone from abroad to act as your child’s permanent guardian.  It will take time for the guardian to arrive from overseas and even more time for the court to make a final decision regarding the case.  Thus, during this time, it is helpful to have a temporary guardian to care for your kids. 

See Janet Brewer, International Estate Planning: The Importance of a Temporary Guardian, JD Supra Business Advisor, Oct. 27, 2014.

October 28, 2014 in Estate Planning - Generally, Guardianship | Permalink | Comments (0) | TrackBack (0)

Thursday, October 23, 2014

Essential California Guardianship Clauses


One of the most important things you can do for your children is ensure they will be taken care of after you are gone.  This can be effectuated by a written will.  However, if you do not write your will properly, the binding legal document can be powerless.  For those who live in California, it is essential to take some of the state’s guardianship laws into consideration while creating your will.  Some of the laws are as follows:

  • Name a temporary guardian and an alternate temporary guardian. This is an important consideration especially for those who have chosen permanent guardians who live far away.  Without a temporary guardian, your children may spend their first days without parents with strangers.
  • Name a permanent guardian and an alternate. Including an alternate guardian will ensure that if something happens to your primary choice, your children will still be placed with someone you are comfortable with.
  • Explain why you have chosen your guardians. In California, the court system can determine who gets guardianship of your children.  Thus, the more information you include about why you have made this choice for your kids, the more likely the court will comply with your wishes.
  • Include special instructions. While you cannot watch a guardians every move, you can leave them with general wishes or guidelines, especially regarding your family’s culture, religion, values or ethics.  

See Janet Brewer, 5 Guardianship Clauses You Need in Your California Will, Probate, Trusts, and Estate Law Blog, Oct. 17, 2014. 

Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.

October 23, 2014 in Estate Administration, Estate Planning - Generally, Guardianship, Wills | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 7, 2014

Keys to Being a Health Care Proxy

Hospital care

Being a health care proxy can be one of the most serious responsibilities conferred upon you.  This power to make medical decisions for your loved ones in case he or she cannot, encompasses talking with your loved one’s medical tam about treatment choices and deciding on a course of action.  It may also entail making end-of-life decisions.  Below are some guidelines in taking on such massive responsibilities:

  • Be able to say no. You do not always have to be someone’s health care proxy if they ask.  “It may be hard enough coping, even without the added responsibilities of making health care decisions.  But it is an important way to help someone you care about.”
  • Understand the lingo. There are three kinds of health care proxies: agent, surrogate and guardian.  In all cases, a proxy is a person who can make health care decisions for someone else.
  • Talk it over. “Spend time discussing the wishes of the individual at the time you agree to serve as the agent.  Discuss religious and moral beliefs to know how they would make decisions on medical care.  Do not be afraid to address the issues.”
  • Get access to records. You should have access to your loved one’s medical records and any information you need about the patient’s health or health care.  Ask for clear explanations so you can understand the patient’s medical condition and what treatment options are available.

See Pamela Yip, Learn Your Loved One’s End-of-Life Wishes While You Can, Dallas News, Oct. 3, 2014.

October 7, 2014 in Disability Planning - Health Care, Elder Law, Estate Planning - Generally, Guardianship | Permalink | Comments (0) | TrackBack (0)

Monday, October 6, 2014

Ohio's Guardianship System to be Revamped


State representatives in Ohio have drafted legislation to reform the state’s guardianship system, using problems uncovered in a series of stories in The Columbus Dispatch newspaper as a guide.  “This is about protecting the state’s most vulnerable people.  We want to hold those in charge of others responsible and ensure they know what’s expected of them.”

House Bill 624 calls for a ward’s bill of rights.  The bill would also require probate courts to give guardians a handbook that specifies how to care for a ward, manage assets and talk with doctors. 

In May, an investigation by The Dispatch revealed that unprincipled lawyers and selfish family members who are court-appointed guardians for people had been deemed incompetent to handle affairs by the probate judge.  The investigation found there were no statewide standards and that many courts lacked necessary safeguards or ignored their own rules. 

The bill proposes to codify 19 separate rights.  First, a ward must be “treated with dignity and respect.”  Other important rights for wards would force courts to implement other changes as well. 

The bill has bipartisan support and is expected to sail through the Ohio House and Senate. 

See Lucas Sullivan, Josh Jarman, and Mike Wagner, Bill Would Spell Out Wards’ Legal Rights in Guardianship System, The Columbus Dispatch, Oct. 5, 2014.

October 6, 2014 in Estate Planning - Generally, Guardianship, New Legislation | Permalink | Comments (0) | TrackBack (0)

Proposed Changes to Ohio Guardianship System

LawCurrently, Ohio does not have codified statewide standards for the state's guardianship system. Rather, standards that guardians must meet vary by county, and recent investigations in the state have exposed abuse of those in the guardian's care and ineffective enforcement of existing standards.

To address these concerns, Rep. Dorothy Pelanda and Sen. Shannon Jones, are backing House Bill 624. The proposed legislation would create a ward’s bill of rights, and give those appointed guardians by the state's probate courts rights such as being “treated with dignity and respect.” The text of the bill may be read here.

See Lucas Sullivan, Josh Jarman, & Mike Wagner, Bill Would Spell out Wards' Legal Rights in Guardianship System, The Columbus Dispatch, Oct. 5, 2014.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

October 6, 2014 in Guardianship, New Legislation | Permalink | Comments (0) | TrackBack (0)