Archive for Guardianship
LAWYER’S BEHAVIOR AT TRIAL IS NOT EVIDENCE OF ELDER ABUSE
Here is an interesting case from California that caught our attention. An 83 year old man filed for a protective order against his 56 year old daughter because of alleged abusive treatment. In the court hearing over the matter, the daughter’s attorney’s confrontational cross-examinationof the elderly gentleman was found by the trial court to be consistent with the daughter’s desire to treat her father in such a fashion. He then granted a protective order which stated that the daughter could not contact, molest, attack, strike, threaten, assault or otherwise disturb the peace of her father. The daughter appealed the case arguing that her attorney’s behavior and her lack of response to it should not be used as evidence by the trial court. The appellate court agreed and said that the trial judge was wrong to base his decision on the lawyer’s conduct.
While this decision is good news for us lawyers, it does highlight the fact that we are too often aggressive and confrontational, particularly in guardianship, probate, and other elder law cases. It is important that all lawyers recognize when in the probate court that we are not trying high profile criminal or personal injury matters. We are involved in disputes among family members where emotions are already running high and we should avoid making matters worse. We can represent our clients effectively in elder law matters without being either abusive or confrontational.
CONTESTED GUARDIANSHIP: NOT EVEN THE RICH AND FAMOUS ARE SAFE
While even the simplest guardianship is an expensive, lengthy, and public undertaking, a contested guardianship can be much worse. A contested guardianship is a case in which there are multiple interested persons (usually family members) with different ideas of what is best for the incapacitated person (the “ward”). As you might imagine, contests like this can drive up the financial and emotional cost of the proceeding, delay results, and air a family’s “dirty laundry” in open court.
A recent celebrity example of a contested guardianship is Fredric von Anhalt’s guardianship (called a “conservatorship” in California) over his wife Zsa Zsa Gabor. Gabor’s daughter asked the court to appoint her as her mother’s guardian instead, accusing her stepfather of sedating and isolating her mother and mishandling her finances. All of this and more has been discussed in court, and is memorialized in the public records and gossip columns. Von Anhalt, who appears to have generally taken good care of his wife, has had to justify all his actions and pay for his defense.
As in the Gabor case, the point most often in dispute in a contested guardianship is who is best suited to take care of the ward as his or her guardian. This issue is usually resolved by the court at the time it determines that the ward needs a guardian. However, a serious debate between family members over who should serve as guardian can extend a hearing that should take fifteen minutes into a trial that spans over several days. Additionally, challenges can continue throughout the guardianship, like they have in the Gabor case.
The good news is that everyone, rich and famous or otherwise, can avoid guardianship altogether with proper planning. A comprehensive estate plan may include documents such as a revocable living trust, a designation of health care surrogate, and a power of attorney that can serve as an alternative to guardianship, when well-drafted. The plan also may include a designation of pre-need guardian, which allows you to name the loved one(s) you would want to be your guardian, if a court should ever decide you need one.
PROFESSIONAL GUARDIANS: ADVANTAGES AND DISADVANTAGES
A professional guardian is exactly what it sounds like: a person whose job is to serve as guardian for people who are legally incapacitated and need a guardianship. Like other guardians, a professional guardian is appointed by a court to watch over an individual’s person and/or property. This can be done either voluntarily or involuntarily after the court decides that the individual needs a guardian because she is not able to take care of herself and/or her property.
There are certainly advantages to having a professional guardian serve instead of a relative or friend of the person who needs a guardian (the “ward”). Unlike individual guardians, professional guardians must meet certain requirements before they can start taking on wards, such as completing at least forty hours of education, posting a bond of at least $50,000 with the clerk of court, and passing background and credit checks. Experienced professional guardians have more knowledge of the duties of guardianship and are more familiar with the court process than most individuals. Many of them are also accustomed to dealing with or, when necessary, ignoring fighting family members to do what is best for the ward.
However, there are also drawbacks to the appointment of a professional guardian over a trusted friend or family member. First, professional guardians, unlike other guardians, do not serve for free; reasonable fees for their time will be paid from the assets of the ward. Second, professional guardians often have dozens of wards and are only required to visit (or send a staff member to visit) each ward in person once every three months. Although non-professional guardians do not have any visitation requirements, most of them are naturally inclined to visit and check on the ward frequently.
Professional guardians are most often appointed in two situations. The first is where the ward does not have any friends or family members who are willing to serve as guardian. The second is the exact opposite scenario; the ward has too many people fighting over who will take care of her and a neutral third party is needed. In these types of cases, professional guardians are the best (or only) option. But remember that you have the power to designate the person who you wish to be your guardian, or even avoid guardianship altogether, through lifetime planning.
HOW DOES THE GUARDIAN ADVOCACY PROCESS WORK?
(Guardian Advocacy Series – Part Five)
Guardian advocacy is a special form of guardianship for individuals with developmental disabilities. Like other forms of guardianship, guardian advocacy involves the court appointing one or more individuals (“guardian advocates”) to help take care of the person with a developmental disability (the “ward”).
A person seeking to be appointed as the guardian advocate of someone with a developmental disability must open a case by filing appropriate documents, including a Petition for Appointment of Guardian Advocate, with the court. The Petition should assert that the proposed ward needs a guardian advocate and explain the ward’s abilities and the nature of his disability.
After the proposed guardian advocate opens the case, an attorney will be appointed to represent the person with a developmental disability in the proceedings. This attorney will meet with the proposed ward and evaluate the ward’s wishes and need for a guardian advocate.
Next, the case will go before the appropriate judge who will decide whether or not the proposed guardian advocate should be appointed and which rights should be taken from the ward and assigned to the guardian advocate. Unline traditional guardianships, this does not require the court to first declare the ward incapacitated, which involves a more expensive and invasive examination of the ward’s mental status and abilities.
A newly appointed guardian advocate will need to file initial reports to the court about the status of the ward’s person and property. She will generally have a duty to update the court every year about the ward’s physical and financial situation.
Although Florida law does not require guardian advocates to be represented by an attorney, we recommend that anyone trying to become a guardian advocate seek legal assistance at least in preparing the initial paperwork. At Cramer Law Center, we help guardian advocates from the very beginning until the initial reports are approved for a flat fee. We also assist guardian advocates with their ongoing reporting duties for a flat annual fee.
This blog is the fifth and final part of a series on Guardian Advocacy. If you have individual questions about guardian advocacy, please feel free to call and make an appointment.
WHAT IS GUARDIAN ADVOCACY?
(Guardian Advocacy Series – Part One)
Guardian advocacy is a special form of guardianship for individuals with developmental disabilities. Like other forms of guardianship, guardian advocacy involves the court appointing one or more individuals to help take care of the person under guardianship, called the ward.
While they are minors, the parents of developmentally disabled persons are their natural guardians and may make any decisions necessary in caring for them. However, like all children, developmentally disabled individuals become adults in the eyes of the law on their eighteenth birthdays. This means that parents no longer have the legal right to make decisions on such matters as medical treatment, social environment, or even where their child will live. The developmentally disabled person will also automatically have the right to marry, to sign contracts, and to sell or give away his or her property.
Guardian advocacy allows the parents of a developmentally disabled person (or other appropriate individuals) to continue to assist that person in his or her life decisions. A guardian advocate can help his or her ward by choosing where the ward will live, applying for government benefits such as Social Security income, making medical decisions, and managing money and other assets of the ward.
Like other guardians, the guardian advocate is held responsible by the court for his or her care of the ward. However, the process for guardian advocacy is simpler than for other forms of guardianship and is intended to be less restrictive on the ward.
This blog is the first part of a series on Guardian Advocacy. Several additional parts will follow over the next few months. If you have individual questions about guardian advocacy, please feel free to call and make an appointment.
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