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Estate Planning

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 advanced healthcare directive, medical providers will work with you to assist your parents. Hospitals will accept the advance health care 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.

The 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 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 money, 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. Guardianships generally are quite expensive.

Included with the general topic of guardianship is also a conservatorship. Conservatorship 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 and 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. One condition for which a guardianship will not be granted, is over a person who is supposed to be taking medication that affects their mental status. 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 would 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.

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

By | Estate Planning, Probate and Trusts | No Comments

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

By | Case News, Estate Planning, Probate and Trusts, Uncategorized | No Comments

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.

DID YOUR LAWYER PAY PROPER ATTENTION TO YOUR NEEDS WHEN YOUR WILL WAS CREATED?

By | Estate Planning, Probate and Trusts | No Comments

Did your lawyer pay proper attention to your needs when you last had your will revised? Many lawyers advertise that they specialize in estate planning.  Many of these lawyers advertise an extremely low price for estate planning.  While it is important to pay as little as necessary for any goods or services, it is more important that the money you spend be spent wisely.

When creating a will, you should make sure that your attorney sits down and meets with you so that he completely understands your family situation. Are you married to your first wife? Are you in a second marriage? Do you have children from multiple marriages?  Do you have heirs who cannot manage money?  Do you have heirs who have special needs?  Do you have children whose marriages are unstable?  Are your assets liquid or highly illiquid and concentrated in real estate holdings?  All of these questions should be part of your attorney’s interview with you when beginning preparations for a new will.  If your attorney did not cover these matters, your will may well be deficient.

Most people want to ensure that their assets are left to the people who they love most, or the organizations they admire most. You need to make sure that your will is drafted so that the people you intend to inherit are the ones who receive the benefit of your estate.  Too many times, estates are distributed to unworthy beneficiaries, in-laws who were never intended to inherit, or organizations that were not those you designated.

Please make sure your attorney has conducted a thorough review of your situation before preparing your will. If your current will was not prepared with the above situations considered, please call us to help you with your estate planning needs.

Are you planning for your Social Security properly?

By | Estate Planning, Probate and Trusts, Uncategorized | No Comments

As you approach age 62, you should be consulting with a financial planner to help you make the correct decisions regarding Social Security benefits to which you are entitled as a result of your years of hard work. Age 62 is when you can first begin receiving Social Security benefits, generally speaking. However, you can also delay receiving Social Security benefit until age 70. There are various times in between that eight year period when you can elect to begin receiving Social Security benefits or sign up for Social Security benefits, but defer receiving them until later. The decision that you make needs to be well-informed. Reading the Social Security website is not how to obtain this information. That would be similar to reading the IRS website for information on how to save on your federal taxes. Neither website is designed to help you maximize your benefits.

 

The decision when to receive Social Security benefits is tied to your working life, your tax situation, your debt situation, and finally, and most importantly, your health. Therefore, as you approach age 62, you should contact a financial planner with expertise in the Social Security process. Only after sound advice from an expert in this area can you make the decision that is best for you and your spouse. Social Security benefits are yours by law. You have paid for them and you are entitled to maximize those benefits to the fullest extent of the law.

 

At Hughes and Associates, we can assist you with your estate planning needs. While we are not financial advisors, we can assist you in identifying the various areas that need your attention as you plan your estate. This includes referring you to financial advisors, insurance agents, business evaluation experts, as well as trust administrators. Each person has a unique situation that requires a unique answer. There is no “one size fits all” in estate planning. Even your spouse may have different needs than you due to the ownership of assets, inheritance that one spouse may be receiving from her parents, children of one spouse who are not children of both spouses, etc. Please call us for help in planning your estate.

Estate Planning in Light of the New Same-sex Marriage Ruling

By | Estate Planning, Probate and Trusts | No Comments

With the Supreme Court pronouncement that an individual has an absolute right to marry any other individual, estate planning has become more complex in some instances, and much easier in others. The Supreme Court ruling has no effect on people who are legally married. The states historically have laws that allow spouses and children to inherit from a deceased spouse or parent in the absence of a Will. This is because traditionally, most people leave their Estates to their spouse and/or their children. Therefore, if you died without a Will, or intestate, state laws govern who inherits your property and generally speaking, it is your spouse, your children, or a combination of the two. People who lived in life partnerships prior to the Supreme Court announcement could not enjoy the same inheritance rights, as the inheritance laws do not recognize life partners, and subsequently, it was mandatory for anyone with a life partner to prepare a Will if they wanted their life partner to inherit their property at their death.

 

Now that all people can marry the person of his/her choice, it lessens the necessity for having a Will. If you review your state laws and it leaves your property as you want it left, then preparing a Will becomes less important. However, the only way to choose who will be your Executor and choose who will be the guardian of your children at your death, is to prepare a Will. Certainly, there are default provisions in the law that provide for an Executor, if you fail to name one. Further, the law sets forth who will be the guardian of your children if you fail to name one.

 

With the new Supreme Court decision, you should consider revising your estate plans in light of the fact that once you elect to become married, that person will inherit your assets absent you creating a Will that leaves your property differently. For instance, if you wish your parents or siblings to inherit you assets rather than your spouse, you will need to create a Will to make that happen. Likewise, in Georgia, your children and your spouse share your estate in proportions based upon the number of children you have. If you wish your entire estate to go to your spouse, you must create a Will that brings that about. Further, if your children are under the age of 18, you should create a Will so that your children’s property can be placed into a trust until they reach some age which you designate to be appropriate before they will actually possess your property. Absent a trust and your Will, your children’s property will pass into a conservatorship controlled by a probate court and your children will inherit and gain possession of the entirety of their assets upon reaching the age of 18. This rarely is a desired outcome.

 

At Hughes and Associates, we are ready to assist you in the preparation of your estate plan and any modifications which need to be made to your estate plan in light of the recent Supreme Court ruling. Please give us a call and see how we can help you

Power of Attorney

By | Estate Planning, Probate and Trusts | No Comments

Many people believe they have their affairs in order by creating a Will that explains how they wish their assets divided at their death. Unfortunately, some people will suffer from some type of incapacity, either physical or mental, during their life. Few people have prepared a durable financial power of attorney to address that particular situation. A durable financial power of attorney is a document that provides direction to a selected individual to act as your power of attorney in the event you become disabled, either mentally or physically. Sometimes, a person is mentally disabled and is unable to make decisions for himself. However, equally important, although you recover from it, is when you suffer from a physical disability that prohibits you from transacting your business. For instance, you are suffering from broken bones and are confined to a bed. A properly created durable financial power of attorney will allow someone to act as your attorney in the event you cannot attend to your affairs. Read More

Advance Healthcare Directive

By | Estate Planning, Probate and Trusts | No Comments

You may have executed a will and consider that you have done all of the estate planning that you need to do. Unfortunately, wills only become effective after you die. Prior to your death, you may become incapacitated and unable to make decisions for yourself. This is where an Advanced Health Care Directive (AHCD) becomes valuable.

An AHCD is designated to allow you to express your wishes to the medical community and a person of your choosing as to how you wish to be treated medically if you reach a position of incapacity or become terminally ill and are facing an “End of Life” decision. Many people have a desire not to be placed on life support, while others wish to be kept alive with the hope that some recovery will occur. It is only through an AHCD that you can make these wishes known.

In addition to End of Life decisions, an advanced health care directive also allows you to appoint someone to make decisions for you if you are unable to do so for yourself. Further, you can specify your funeral or burial plans, as well as making determinations concerning donation of organs or your body to science. Without an advanced health care directive, your family may be left with the difficult task of filing for guardianship with the probate court. This process can be tedious and costly. With proper planning this can all be avoided, making a very difficult problem for your family more easily handled.

Please contact us for more information on Advanced Health Care Directives.