The Hughes Law Blog

Is it time for guardianship for your mother or father?

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There comes a time in many of our lives when we believe our parents are unable to care for themselves any longer. If you are in that situation, you should understand what you can do outside of having legal authority over your parents and what you can do if you have a court Order.  This article will hopefully help you understand that.

The first thing that you should do is ensure that your parents have a Durable Power of Attorney for their financial affairs, as well as an Advance Healthcare Directive for their medical affairs. These documents must be completed and signed by the person appointing another to make decisions.  These documents must be signed while that person is legally competent.  It is too late after that person lacks capacity to make decisions for themselves.  Therefore, while your parents are younger and in good health and spirits, sit down with them and urge them to create these two documents.  The person appointed by these two documents, generally speaking, will never need a court Order for any purpose.  As with all rules, there are exceptions to this generalization.  If you have a Durable Power of Attorney for your parents’ financial affairs, most businesses, banks, and institutions will accept this power in lieu of your parents actually participating in whatever business transaction you are conducting.  If you have an Advance Healthcare Directive, medical providers will work with you to assist your parents. Hospitals will accept the Advance Healthcare Directive and allow the appointed person to begin making medical decisions for their parents. However, here we are talking about how to handle the situation if your parents have failed to generate these documents.

A guardianship is a court ordered position where the court has found your parent lacks capacity to make reasonable decisions for themselves. This generally will occur when the person can no longer feed, clothe, bathe, take medications and otherwise generally care for themselves. There is no absolute standard for guardianship. It is left to the discretion of the judge after hearing testimony from interested people, including the person over whom the guardianship is proposed. You should consider seeking a guardianship for your parent whenever they begin making irrational decisions or when the medical providers tell you they can no longer accept your directions for your parent. With the new HIPPA laws, doctors and hospitals are prohibited from sharing a person’s medical records with anyone. Unfortunately, this covers the situation of children taking care of their elder parents. You will probably notice your parents need for a guardianship first as it relates to their financial affairs. They will begin either giving their money away (or hoarding their assets) through irrational decisions. Each is a common characteristic of a person who is losing their capacity to manage their affairs. Guardianship hearings in the Probate Court are very emotional hearings. Rarely does the person over whom the guardianship is proposed want the guardianship imposed on them.

One condition for which a guardianship will not be granted is when a person quits taking his medication.   In some instances, people have been diagnosed with mental illnesses and prescribed medications to control that illness.  So long as that person takes the medication, they are generally, fine, but when the person stops taking this medication, they become irrational or uncontrollable.  The court, generally speaking, cannot impose a guardianship over that person because while on medication, they are perfectly safe to be alone and are capable of caring for themselves.  Furthermore a guardianship does not give the Guardian the power to make the ailing person take medications.  There are no laws on the books that can be used to force a person to take drugs they do not wish to take.  Therefore, you cannot use a guardianship as a means to enforce some type of medicine therapy. The court is taking the individual’s rights away as it relates to that person’s ability to make decisions about living arrangements, doctors, and generally any other normal day-to-day decisions that most of us take for granted. Because of the seriousness of this Order, many safeguards are in place to ensure that the person who’s rights are going to be affected has representation at the trial as well as, in many cases, another person appointed to generally investigate the condition of the person. These trials might take an hour or many days depending upon the issues to be decided and the evidence to be heard. Generally, guardianships are quite expensive.

Included with the general topic of guardianship is also a conservatorship. Conservatorships are simply guardianships over a person’s property, whereas a guardianship is control over the person himself. The two positions are usually asked for in the same decision and evidence as to both positions are heard in the same trial. The standard used to determine whether a Guardian is needed or whether a Conservator is needed is slightly different. Therefore, there are instances where one may be granted, a conservatorship but not a guardianship, or the other way around. In most cases, both positions are either granted or denied. Any adult relative can file for guardianship with the preference being the spouse of the ailing individual and if there is no spouse, then adult children of that parent.  If none of the children are willing to seek guardianship over their parents, then, any other interested person may apply and in some case, even the State will apply to take control over the parents.  This is the last resort and hopefully not one that anyone is subjected to.

If you have need help with the guardianship or conservatorship, feel free to call our office to speak to one of our attorneys.

 

 

IS THE STATE HOLDING PROPERTY THAT BELONGS TO YOU?

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Have you checked to see if your state has property belonging to you? If not, do so at least annually. The State of Georgia, and all states, have an unclaimed property department. Unclaimed property is given to the state for holding when a company or person has property that belongs to another, but cannot locate that person to give her the property.

This often occurs when you own stock in a company, or have a deposit at a bank, and merely forget about it. You move on in life, move to a new address, and the person holding your property can no longer find you. That company is under no obligation to spend its funds searching for you. When this occurs, companies can give your property to the state with the identifying information it has about you.

The State of Georgia holds unclaimed property for 5 years. If, after 5 years, you have not claimed the property, it then belongs to the state (escheats to the state). To find out whether you have any property being held by Georgia or any state where you once lived, go to https://www.unclaimed.org/ . This website is The National Association of Unclaimed Property Administration. Once on the website, you can choose from the 50 states to contact that state directly. You then search using your name in each state where you maintained an address in the past five years. Because many people share your name, you will then be requested to enter additional identifying information so the system can determine whether this property belongs to you or another person with your same name. Once you have confirmed with the state you are the owner of this property, the state will turn the property over to you.

Everyone should check the unclaimed property website annually for any state in which you have lived within the past five years.

Another Victory in Georgia Probate Court

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We are pleased to announce another successful outcome in a Georgia Probate Court for a very deserving client. Here, we believed our client was included in his grandmother’s Will after his father had passed away. Our client’s aunts and uncles believed that the grandmother deliberately omitted him from her Will. Despite our vigorous efforts to convince the opposing counsel that the Will included our client, we had to file numerous pleadings with the Probate Court asking that the Court interpret the Will. After months of legal wrangling, we secured a complete victory for our client. The Probate Court found that the grandmother included our client in her Will, and that he is entitled to his father’s share of the estate.

Once again, we have been able to defend the rights of one who otherwise would have been taken advantage of by his relatives. If you believe that you are being mistreated or taken advantage of in an estate dispute, please contact the lawyers at Robert W. Hughes & Associates and we will be happy to review your situation and give you an assessment. You may be entitled to more than you think.

 

Vote NO to the Constitutional Amendment No. 1 this year

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If you are for keeping your local school board in charge of local schools, vote no to the Constitutional Amendment No. 1 this year.

The Georgia Legislature determined that many of our schools throughout the state are failing. Shocking that they have awakened to this decade’s old problem! The Legislature’s solution for those failing schools is to terminate county authority for the schools and let the State run the schools.  This is a sad excuse not to approve charter schools which have proven to succeed where the previous school failed.  This is akin to the federal government deciding it knows better than our state on how to handle education.  Since the federal government became involved in our local education, schools have become more like daycare centers than the true learning centers they should be.  The local administrators have been handcuffed by the federal government in how to teach and how to discipline.  The State of Georgia is attempting to do the same here.  Local citizens recognize if one of their schools is failing and can take action by voting in new board members, demanding the firing of school superintendents, etc.

Whenever the State takes over a local school, the local citizens are relinquishing control to the State of Georgia over how the local school is run, what it teaches and how it disciplines its students. VOTE NO to Constitutional Amendment 1 on this year’s ballot.

Vote NO to Amendment THREE This November

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VOTE NO TO Constitutional Amendment THREE

The Georgia General Assembly, apparently upset that one of its members had been removed as a judge by the Judicial Qualifications Commission (JQC), has decided that the JQC is corrupt and does not properly discipline the judges in this State. The Legislature’s solution for the problem they described is to allow the legislature to choose the members of the JQC. This allows politics to become the primary driving force behind the JQC.

As it is established, the JQC is a model that many other states have copied. It has successfully removed many judges through the years. It has punished many more for conduct it found improper. The current JQC comprises seven members, two sitting judges, selected by the Georgia Supreme Court, three lawyers who have been working for at least 10 years and who are elected by the State Bar of Georgia Board of Governors, and two citizens, neither of whom shall be members of the bar and who are appointed by the Governor.

Lawyers expect judges to maintain the integrity of the bench. It is the cornerstone of all justice.  I expect it when I appear in Court.  All other attorneys expect the same. All trial lawyers expect that judges will comply with all rules of behavior. It is the only way we have an orderly judiciary and judicial system.  It guarantees that people appearing in court receive a just and proper hearing. All lawyers ask that the scales be balanced as their clients appear in court: nothing more and nothing less.

The JQC must remain free of political influence. Only if politics stays out of the business of disciplining judges will judges remain free to deliver decisions based only on the laws of the State of Georgia. I urge you to vote no to Amendment 3 on the November ballot.

HOW DO I KNOW IF I SHOULD FILE A WILL FOR PROBATE?

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If someone dies leaving an original Will in your possession, Georgia law requires that you file the Will with the probate court in the county where the deceased person resided. However, the law does not require you to file the Will for probate.  This decision must be made after carefully considering what assets are in the estate.  Often, people will have assets placed in the names of more than one person.  For instance, a husband and wife may own their house as joint tenants with right of survivorship, or less likely as tenants in common.  Likewise, bank accounts may be in joint names with both spouses or a parent and a child.  If assets are titled with multiple names on the ownership papers, generally speaking, the assets will belong to the people or persons who live the longest.  You rarely need to probate a Will to transfer assets with multiple people’s names on them.  Some exceptions to this rule are beyond the scope of this paragraph.

Therefore, the first step you must take in trying to determine whether you should probate a Will is to determine the character of the assets owned by the deceased person. If there are assets only in the name of the deceased person like real estate, bank accounts, or investment accounts without designated beneficiaries; you may well need an Order from the probate court to transfer the property into another person’s name.  This can only be accomplished by offering the Will for probate and having an Executor appointed.

There are methods for transferring small bank accounts to the heirs’ names. Also, muniments of title can be filed to transfer real estate into an heir’s name, but usually these documents will not be accepted by a closing attorney if the property is sold. Therefore, you are usually best served by having an Executor appointed and transferring the real estate with an Executor’s Deed.

WE CAN PROTECT YOUR 2nd AMENDMENT RIGHT TO KEEP AND BEAR ARMS

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WE CAN PROTECT YOUR 2nd AMENDMENT RIGHT TO KEEP AND BEAR ARMS

We are pleased to announce that we have a Second Amendment rights attorney in our firm. Shawn Owen is an accomplished marksman and gun owner. He is also a member of the National Rifle Association.  He has recently gained the training and experience to advocate for individuals’ rights to keep and bear arms.  He is accomplished at creating gun trusts for guns that must be placed into a trust.

Shawn can ensure that Wills are written properly to allow the transfer of firearms to another person under federal law. Some firearms cannot be transferred by an estate to an individual without federal laws being followed. Shawn is trained to ensure that the executor does not violate federal law when transferring certain firearms.

One of our clients recently exercised his Second Amendment rights in defending himself during a home invasion . We are proud of citizen action like this and urge all of our clients to exercise their Second Amendment rights to protect themselves and their belongings. Call Shawn if you have questions concerning your right to keep and bear arms; to ensure that your will properly transfers your firearms to another; or if you are an executor or administrator and the deceased owned certain firearms that require special licenses or permits before you can transfer the firearms to another person.

Has Someone Nominated You to Be the Executor of Their Estate?

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Has Someone Nominated You to Be the Executor of Their Estate?

If someone has named you as the executor of his or her Estate, there are many considerations you should think about prior to accepting that appointment. Among them are:

  1. Is the Estate going to involve contentious parties? Are the heirs and beneficiaries on the same page as the matter moves forward? This, more than most any other item, should be a point of concern for you before accepting the nomination to be executor. As the nominated executor, you may retain counsel to assist you in offering the will to the probate court and defending the validity of the Will if it is challenged.
  2. How much time do you have to devote to handling estate matters? If the will is challenged, the litigation can take substantial time of yours and involve substantial financial resources from the Estate. As the nominated executor, you will be paid a fee for your time. Although it is not an exact calculation, you will be entitled to approximately 5% of the value of the assets in the estate as compensation for being the executor. You also can pay all attorney fees from the estate if your hire an attorney to assist you with the administration of the estate.
  3. Are you a beneficiary under the Will in addition to being the nominated executor? If you are a beneficiary under the Will, you must take extraordinary care to make sure that all of your actions are fair and equitable. Under Georgia law, you must make sure that where discretion is allowed, that you err on the side of benefiting the other beneficiaries rather than yourself. This is so even if all of you are to be treated equally. This normally arises in distributing tangible assets such as household items and mementos. Also, selling homes or cars to yourself or your immediate family can cause great concern if all beneficiaries do not agree with your decision or the price you have placed on the item. You can ask the court for approval before selling items if all beneficiaries do not agree.

If you have been nominated as the executor of a will, please call us at 770-469-887 to schedule an appointment to insure you are handling things properly. We work throughout the State of Georgia to insure that executors handle their duties properly. Remember, if you misstep, you may be personally liable for the money you cost the estate or a beneficiary.