Archive for Guardianship
WHAT IF THE MAYANS ARE WRONG!
I am sure by now everyone is familiar with the idea that the Mayan Calendar ends in 2012, and, according to the History Channel and other news media, so do we! What if this theory is incorrect?! What if, there still is life on earth after 2012? Will you wish you had planned for the future to protect yourself and your family from disability, an untimely death or paying unnecessary taxes? Or, will you just assume the future will take care of itself?
It just makes sense to take care of yourself and your family now, by making sure you have a will or trust, healthcare directives, guardians for your children, power of attorneys, etc.
There seems to be a general malaise in our country and people are terrified to move forward…but, you can’t move backward! Log onto our website and see all the services we provide. Be brave, plan for the future!
END OF LIFE PLANNING
Two of the statements I hear most frequently from seniors are “I don’t want to go into a nursing home” and “I don’t want to be put on machines”. However, without proper legal documents in place, your medical decisions may end up out of your hands. This delicate subject seems to be difficult for many families to even bring up. Although we know there is a need to prepare, we tend not to want to think about someone in the family becoming terminally ill or tragically injured. Sometimes a diagnosis comes that leaves a family time to prepare, but many times there is an unexpected crisis which can leave a family reeling to making decisions. Many people lack understanding or misunderstand advanced health care directives. We are happy to explain the designation of healthcare surrogate, living will, power of attorney or even how guardianship works.
If you or someone you know has ever made one of the two statements at the beginning of this article, we invite you to stop in and talk with us. There is never a charge for an initial consultation to explore your estate planning goals.
3 COSTLY MISTAKES MADE BY FAMILIES WITH SPECIAL NEEDS CHILDREN
As a Jacksonville, Florida special needs lawyer, I realize disabled and special needs children have unique planning needs. Unfortunately there are many misconceptions when it comes to securing the financial future your child deserves. Even well-meaning caregivers and service organizations don’t always understand legal issues and can give bad advice. It is really critical for these families to fully understand their options because these misconceptions can result in costly mistakes. Below are just a few.
COSTLY MISTAKE #1: Procrastination. It is critical that all parents with minor children do estate planning. You just never know when you might become incapacitated or die. But, it is even more critical that parents of special needs kids plan early. That is because a child without special needs will be able to work and provide for their own financial well-being when they become adults. However your special needs child may never be able to do that. Plan early because your failure to properly plan for there can never be undone.
COSTLY MISTAKE #2: Disinheriting your child to preserve government benefits. Many children and adults with special needs rely on government benefits such as SSI and Medicaid for their basic needs (including health insurance). There are some well meaning people and attorneys who would suggest that you disinherit your child to protect his or her benefits. But government benefits provide only enough to secure food, clothing and shelter. So what happens after you become incapacitated or pass away? Will your child be able to maintain the life that you have so carefully crafted for them? Probably not.
If your child is likely to require government assistance to meet his or her basic needs, you should consider establishing a Special Needs Trust. If done properly, a Special Needs Trust can protect your child’s public benefits and help them maintain their lifestyle even after you are no longer there to support them.
COSTLY MISTAKE #3: Creating a “do-it-yourself” or generic special needs trust. Special Needs Trusts should be created by a lawyer who has expertise in this area of the law. That is because special needs trusts are subject to both federal and state laws and the laws of each state can vary. It may be possible to create a do-it-yourself or generic “form” trust that can protect your child’s government benefits, but most likely they are not designed to meet your child’s particular needs. It is critical to design a trust that will ensure that your child’s specific requirements are considered. For example, your child may require, or greatly benefit from, special group programs, individualized physical therapy, or other things that a generic trust simply doesn’t address.
A properly drafted and funded Special Needs Trust can ensure that your child has sufficient assets to care for them in the way you plan throughout their lifetime. But be sure to see an experienced special needs attorney at the Cramer Law Center and don’t rely on what others may be telling you.
Thanksgiving: A Time for More than “Talking Turkey”
In 1621, Plymouth colonists and Wampanoag Indians shared an autumn harvest feast. This is generally acknowledged as one of the first Thanksgiving celebrations in the colonies (although Native American groups are believed to have organized harvest festivals and other celebrations of thanks centuries before the arrival of Europeans). And while days of thanksgiving were celebrated by individual colonies and states in the years that followed, it was not until 1863 that President Lincoln formally proclaimed a national Thanksgiving Day, to be held on the last Thursday in November.
For many Americans today, Thanksgiving is a time to put aside worries about work and calories, try to make the best of having to watch the Detroit Lions attempt yet again to play professional football, and focus on what matters most in life: FAMILY.
At Cramer Law Center, P.L., we would like to take this opportunity to wish you and yours a very happy Thanksgiving. And, because we are estate planning attorneys who care about you and your family, we can’t help but use this opportunity to remind you of something important: Thanksgiving, with the family gathered round, is an ideal time for everyone to talk with each other about their healthcare wishes. We know that having this conversation may be difficult, but it is truly necessary.
By explaining your feelings to your loved ones, you spare them the stress and pain of having to make such decisions on their own, without the benefit of your insight. In effect, sharing your feelings, goals and wishes in advance, as best you can, is a way for you to show your love for your family and concern over their emotional well-being.
So now you’re convinced, but you don’t know how you’d begin the conversation? You can always blame it on us. (“My attorney really wants me to talk with you about this …”) We’re happy to take the rap.
We hope that this Thanksgiving is one of the best ever for you and the rest of your family. And if you want to speak to those closest to you about your healthcare wishes but want a different way to start, we can show you other ways to begin the conversation. Chances are, you will find that it is not as difficult as you imagine, and will actually draw your family closer together.
Be safe and have a wonderful holiday!
Jeff, Melinda, and Val
ALZHEIMER’S DISEASE – DISABILITY PLANNING
Former Supreme Court Justice Sandra Day O’Connor has authored a compelling Op-Ed piece in yesterday’s New York Times arguing that this country needs to make a greater financial commitment to finding medicines that will delay the onset of Alzheimer’s disease or, better yet, cure it. The likelihood that a person will develop symptoms of Alzheimer’s or other forms of dementia doubles every 5 years after age 65. One of every two persons over age 85 is afflicted. This disease is 100% incurable and robs people of their memory, judgment and dignity. It depletes families both emotionally and financially.
By 2050, it is estimated that 13.5 million Americans will be stricken by this disease. We are sure that you will agree that developing a well designed and adequately funded national strategic plan to combat this disease is necessary.
In the meantime, we continue to urge everyone to make both financial and legal plans to deal with this eventuality. The comfort and dignity of you and your loved ones can be maximized by proper planning. By preparing, in advance, detailed instructions to your caregivers on matters of daily living that are important to the preservation of your dignity, you can make a substantial difference in your quality of life if suffering from dementia. Examples of small things like indicating your favorite foods or whether you like the room temperature warm or cool can make a large difference. We can help with both the legal and personal planning. I also am available if you just want to talk. In addition to my professional experience, my 86 year old mother has dementia and I have been through some of the stress and anguish which accompanies this disease.
THE GUARDIAN ADVOCATE
When children with developmental disabilities reach age 18, they become “adults” in the eyes of the law. Parents no longer may legally make financial and health care decisions for their adult children. If the developmental disability is severe enough to prevent the adult child from caring for him or herself, the parents must apply to become their child’s legal guardian in order to continue making important decisions for their developmentally disabled child – such as consenting to medical, dental, and surgical procedures; managing money or property; applying for governmental benefits and entitlements; and deciding on residential choices.
Fortunately, Chapter 393 of the Florida Statutes is specifically designed to meet the unique needs of persons with developmental disabilities. The person who would be appointed to care for an adult with developmental disabilities is called a “guardian advocate.” Even though the term is different from the term “guardian” as used in Chapter 744 of the Florida Statutes, the authority given by the court to each is the same. However, Chapter 393 is less restrictive, less costly and much preferred in order to care for persons with developmental disabilities.
Because of the streamlined process, guardian advocacy proceedings are consuming less court time and thereby reducing attorney’s fees. For example, there is no need to pay for an examining committee of three professionals, as is required in Chapter 744. The statute does not require a separate hearing to determine incapacity and there is no adjudication of incapacity. Existing professional evaluations and plans identifying needs may be used to identify rights which the developmentally disabled individual cannot handle. The judge will review the reports, evaluations and support plans and then appoint a guardian advocate to perform only those functions that the person is unable to perform. All of those rights that the developmentally disabled person cannot manage will be given to the guardian advocate to handle.
We are fortunate to have this streamlined guardian advocate procedure available in Florida. Parents with developmentally disabled children should be aware of this statute and plan ahead for when a child with developmental disability reaches 18 and becomes an “adult.” Cramer Law Center has helped many persons through the guardian advocate process and is available to help others through the process.
BACK TO SCHOOL
It’s back to school time again. Do you have a college student getting ready to leave home? What about a niece, nephew, or neighbor that is ready to begin the college journey?
Now that these “children” are considered adults in the eyes of the law, there are protections you should consider implementing so that you can still speak with their doctors. You or other loved ones may not have access to medical information or treatment plans, even in the event of an emergency. An effective way to address this challenge is to have the student sign advance health care directives (Designation of Health Care Surrogate and HIPAA release) before the student leaves home. Equally important is that the documents are readily accessible to parents and health care providers.
The process is simple and will take only a few minutes to ensure family access to medical information. Our program for college students offers the following benefits:
1. Designation of Health Care Surrogate appointing someone to make medical decisions in case of the student’s inability to do so (typically the student’s parent or parents).
2. HIPAA Release detailing who should be allowed to have access to medical records and be able to speak with physicians about treatment and status.
3. Enrollment in the DocuBank I.C.E. (in case of emergency) program a national health care document storage and recovery system that provides ready access to the documents by medical professionals on a 24/7 basis.
4. Wallet Card for the student that includes how to access their health care documents and emergency contact information.
5. Alerts for medical professionals of allergies and medical conditions your child may have.
If you are interested in this program, please contact us at (904) 448-9978 or info@cramerlawcenter.com. The cost is $250 for the first child and $150 for each additional child in the same family. This includes enrollment in the I.C.E. program for a full four years.
Our thoughts are with all of our families sending students to college, particularly those who are leaving the nest for the first time.
Family Feud: Costly in Guardianship Court
Families that have not done proper Estate Planning often end up in Guardianship Court. Without proper documents, when a loved one is no longer able to care for himself or herself, someone else must use the court system to become his or her legal Guardian in order to make medical and financial decisions for that incapacitated person. The Guardianship process itself is public, time-consuming, and expensive, even if matters are uncontested. However, if the court becomes a stage for a “family feud,” both the emotional and financial costs can skyrocket.
Typically, there are at least two attorneys involved in the Guardianship proceeding. The person petitioning to become the guardian is required to have an attorney. Additionally, the person who is alleged to be incapacitated (the “ward”) is appointed an attorney by the court, to protect his or her interests. If several family members vie to become the guardian (such as siblings fighting over a parent), the number of attorneys involved and resulting expense is multiplied. Such family in-fighting also takes an emotional toll on the participants.
The upshot of many guardianship family feuds is that the Judge will decide not to appoint any family member as guardian, but instead will appoint a neutral, “Professional Guardian.” The costs of providing that neutral perspective will be $85 – $100 per hour (in the Jacksonville, FL area), for each hour of the Professional Guardian’s services. Of course, the Professional Guardian also will need to hire her own attorney, to be paid for out of the guardianship estate. Unfortunately, we have seen horrible results from family feuds. No one wins when families quarrel in open court.
Don’t let this to happen to your family!
YOUR EIGHTEEN YEAR OLD SON’S PORSCHE
This newsletter continues our series on the six common mistakes parents make when naming guardians for their children. MISTAKE #5. YOU MAY NOT HAVE PROVIDED FOR SOMEONE TO TAKE CARE OF THE MONEY YOU ARE LEAVING BEHIND.
So, having learned how to avoid the first four mistakes, you have named short term and long term guardians for your children, specified what would happen if the couple you have named to act as guardians are no longer together, prepared a confidential document excluding anyone who might challenge your decision, and have provided necessary financial resources through life insurance or other means for the guardians to properly take care of your children. However, in so doing you named your minor children as the beneficiaries of your life insurance policy. Uh Oh! Big Mistake!
Minor children are not legally permitted to receive life insurance proceeds. Naming them as your beneficiary guarantees that court involvement will be necessary in order for someone to be appointed to safeguard this money. The court will supervise the money only until each individual child reaches the age of eighteen (18), at which time the child receives his share of the money outright, to be used as an eighteen (18) year old sees fit, including buying an expensive automobile.
What you must do is not only name appropriate financial guardians for the children, but you should name either those guardians or a trust as the beneficiary on the life insurance policies themselves. For example, if you have named your spouse as the primary beneficiary on your life insurance policy and your children as the contingent beneficiaries, the contingent beneficiaries likely would need to be changed to read, for example: “Atticus Finch as guardian for Billy Sample” or as the “trustee of the Billy Sample Trust”. By properly naming a guardian as the beneficiary of the life insurance proceeds, you will avoid the time and expense of a court proceeding to establish a guardianship. You also will be able to make decisions to protect against your child receiving a substantial sum of money outright at age eighteen (18), by providing specific instructions to the financial guardians.
Check with your estate planning attorney or life insurance agent to make sure the naming of your life insurance beneficiaries is done correctly. Honestly, what 18 year old doesn’t want a Porsche!
YOU HAVE NAMED EBENEZER SCROOGE AS YOUR CHILDREN’S GUARDIAN.
This newsletter continues our series on the six common mistakes parents make when naming guardians for their children. MISTAKE #4. YOU MAY HAVE CONSIDERED FINANCIAL RESOURCES OF POTENTIAL GUARDIANS WHEN DECIDING WHO SHOULD RAISE YOUR CHILDREN.
In thinking about who to name as guardian, you wanted to make sure that your children would not go wanting and that the person you named could afford to feed, clothe and educate them. So you decided to name your rich Uncle, Ebenezer, to serve as their guardian. Old Uncle Ebenezer is very wealthy, good with money and can easily afford to raise your children. Unfortunately, although Ebenezer has money, there is much else that he lacks. In fact, naming him as guardian might actually be detrimental to your children.
Your children’s guardians will be the people in charge of their emotional, spiritual, and physical well-being, not necessarily just their money. It is your responsibility to leave enough money behind to take care of your children, either through savings or an adequate amount of life insurance. You even can choose to name one set of guardians to take care of the children personally and another set of guardians to take care of your children financially, if the best choice of guardians is not “good with money” people.
It is far more important that you choose a guardian that matches your list of parenting values rather than one who is financially independent. Providing your children with love and good values should be a prominent consideration. Ebenezer’s “Bah Humbug” ! attitude likely would not be your first choice in desirable character traits for your child’s guardian.
Another important point is that not only parents, but also grandparents, can ask about these important questions. Don’t let “Bah Humbug” ruin the spirit of your children or grandchildren! Any grandparents reading this issue should feel free to pass this newsletter on to their children.
