Planning for You and Your Special Needs Family Member

Planning for the future is the best possible way to protect and prepare you and your family for the unknown. If you have a loved one with special needs, the unknown may be something you are familiar with. Structuring a plan for your unique situation will provide the personalized solution that addresses the needs of your family.

Proper estate planning allows you to provide for and protect your loved ones if you become incapacitated or pass away. Your assets are preserved for your beneficiaries, and your estate is distributed according to your plan. An estate plan also lets you communicate your wishes to friends and family.

Planning for a loved one with special needs may be more common than you may think.  Depending on the nature of the person’s limitations and their relationship to you, planning could be for you or them or both.

Since some special needs situations are less obvious than others, let’s start by defining what special needs are. It is a term used for individuals who require assistance for disabilities that may be medical, mental or psychological. There are more than one billion people with disabilities in the world, according to the World Health Organization. That means that about 15% of the world’s population have some sort of disability. What qualifies as a disability is extremely diverse, but usually refers to someone who relies on some sort of assistance on a regular basis. Disabilities can be communicative (blindness, deafness), mental (Alzheimer’s, dementia or a mental or emotional condition that interferes with everyday activities) or physical (require a wheelchair, arthritis, cerebral palsy, epilepsy). But those are just a few examples for each and not every disability requires accommodation or even recognition in your plan.

My goal here is to provide you with some planning strategies involving a special needs family member.

Get Organized

Start by gathering information that you will need to make a plan or to help someone stepping in after the plan to care for you or your family. Some of this information you may already have on hand while other materials may take time and some effort to acquire. I recommend that you designate a folder or filing cabinet where you can store all information pertaining to your plan and let your loved ones know where to look. Forming a comprehensive estate plan along with supporting documents can take time so a central storage place simplifies things for everyone.

Personal Information

Prepare a list that includes you and your loved one’s personal information.  Everything from names, nicknames, dates of birth, addresses, phone numbers, Social Security numbers, Supplemental Security Income and Medicare numbers to anything that you think would be helpful for others stepping in to assist Once you speak to an attorney you may learn of other information you should add – but start getting it together on the front end. In addition to a list with all of this information, build a folder that holds copies of birth certificates, insurance policies, social security cards, military service records and any other important documents such as deeds and marriage certificates.

Digital Assets

When gathering personal information, be sure to include a document with information such as logins and passwords to access all of your digital assets. This is an often-overlooked step when planning. You have a lifetime’s worth of online files and accounts that may become inaccessible which causes more stress for your loved ones. Click here to download a worksheet to create an inventory list with all of your relevant files and accounts in one document. This can be a paper document that is stored with all of your other important documents or in a safe deposit box.

Emergency Contacts

Create a list of emergency contacts for both you and your loved ones. At least three methods of contact should be listed for each individual if known, even if some are shared. Include contact information for your spouse, significant other, children, siblings, parents, employer, business partner or key employee if they were not already listed. It’s not easy to think about who would take your place should something happen to you. However, it is a necessary step when planning for a smooth transition should you be incapacitated or have passed away.

Medical Information

Next, put together a list with all of you, and your loved ones’ medical providers and history. This includes names and numbers of primary care providers and specialists, medications, allergies, significant family history if possible, insurance policy numbers, your employer retiree coverage, health insurance, and any Medicaid or Medicare information. Also, note any counselors or an education plan if your loved one is still in school. People with disabilities report seeking more health care than people without. If you are responsible for or have access to your special needs family members medical resume be sure to include it. Should something happen to you, you’ll want whoever takes over to do so with as much ease as possible as not to disrupt care.

Legal Information

If you have a will, powers of attorney, living will, trust or any other estate planning documents store them together and make sure your family or designated decision makers knows where to find them. , This will also make it easier to collect when it is time to review your plan with your attorney to ensure everything is correct and still reflects your wishes.  It is essential to select an experienced estate planning attorney when preparing or updating your estate plan.

Make a Plan

Planning for your special needs loved one is often emotionally difficult.  Before meeting with your attorney take some time to envision how your incapacity or passing may impact your special needs family member.  If you are the caretaker, consider how you want your loved one or child with special needs cared for if you are unable to do so.  If you are not the caretaker, consider whether that may change over time or how an inheritance might affect their current benefits. You can’t plan for everything but by envisioning your wishes and their needs you will be in a better position to determine your options.  Then you can create a plan that will provide for your loved ones and fill in some or all of the gaps. If this seems overwhelming, one way to consider issues is by looking at what you don’t want (for example, don’t leave it up to your children if you will be kept on life support or force a family member to decide where your child will live if you die). By not laying out a plan, you are likely putting someone in a position to manage and make these difficult decisions on their own and possibly without knowing what you would have wanted. The odds that the law and your good intentioned family will bring about the result you desired is minimal.  Worse no plan can leave your special needs family with an inheritance that will hurt them far more than help.

Meet with Your Attorney

After you’ve taken some time to think about the future, sit down with your attorney. Your estate planning attorney should have experience in planning for families with special needs.  This should include familiarity with Medicare, Medicaid, Social Security and VA benefits at the very least. Your attorney is available to answer your questions and to discuss options some of which you may not have previously considered. Your attorney will draft the necessary legal documents that will express how you want your property, finances, healthcare and care for you and where appropriate your loved one with special needs handled following your incapacity or death. Your attorney can also help you set up financial strategies, such as trusts, to ensure your loved one with a disability can continue to maintain his or her quality of life when you are gone.

Your Plan

You are well on your way to establishing a more secure future for you and your loved ones! All of the following elements of your plan are important and either directly or indirectly affect all of your loved ones.

Letter of Intent

If you are the primary caregiver of minor children or a special needs person of any age, a letter of intent can help manage the difficult transition when you are no longer the primary caregiver. The purpose of a letter of intent is to memorialize your knowledge and desires regarding the needs of your child or loved one so that you can guide future caregivers, guardians and trustees in providing the best possible care. Simply put, this will allow those who come after you to determine the best way to manage and care for your loved one. This can include a general overview of their situation, a daily schedule, food, medical care, education, benefits received, residential environment, behavioral management, social environment and more. It really depends on your individual situation.  This is not a legal document but can work in conjunction with legal documents to provide direction for agents, executors, guardians and caretakers.

Finances

A durable power of attorney addresses financial decisions when you are incapacitated. A durable power of attorney is a flexible document that can be used for a single transaction or to give unlimited power over your financial affairs.  It can become effective immediately or only if the named individual becomes incapacitated. This would prevent the named agent from acting on your behalf as long as you are able to manage your affairs on your own.

Health Care

Making arrangements for your health care is crucial in an estate plan. A medical power of attorney determines who will make medical decisions for you if you become incapacitated.  A directive to physicans, commonly called a living will, expresses your desires for end of life care.

Guardianship

A  minor child may need a guardian if you are no longer able to care for them.  If their other parent is still living then they will become or continue as the primary caretaker.   An adult may need a guardian if they are incapacitated or disabled, meaning they cannot fundamentally care for themselves. If an adult is substantially unable to provide food, clothing, and shelter, care for their own physical health and manage his or her own financial affairs they are considered an incapacitated person. The adult may be suffering from a physical or even mental condition preventing them from properly caring for themselves and their estate. In the state of Texas, an incapacitated person also includes someone who must have a guardian appointed to receive funds from a governmental source. Learn more here about the Guardianship process.

Special Needs Trust and Your Estate

A Will specifies what will happen to your property at your death. This document among other things directs who should inherit. Because Medicaid and the Supplemental Security Income (SSI) programs impose rules about how much money a person with disabilities can have to remain eligible, your Will or estate plan may need to include a special needs trust. A special needs trust can ensure a quality of life for someone without affecting their ability to receive Medicaid and SSI. It is extremely important to execute this with the help of an attorney to avoid making costly mistakes.

Review & Update Your Plan

I often tell my clients that planning for the future is a process and not a one-time task. As circumstances change for you and your family, it is important to revisit your plan and update it to reflect your current situation.

No one ever said life was easy, and creating a strong estate plan is no exception. Please feel free to contact me or my office if you have any specific questions or if you would like to schedule an appointment.

Tax Season and Estate Planning Go Together Like Peanut Butter and Jelly

It’s that time of year again. Whether you do you taxes yourself or get the help of a professional, it’s important to be organized. Sifting through receipts and government forms is just the tip of the iceberg. Tax season is also an excellent time to review your estate plan to make sure everything is in order. You’re already noting any significant life changes in your filing status, so why not apply those changes to all your important documents? Any major adjustments in your life may mean it’s time to update your Will or other estate documents. Below are a few examples that could trigger a review of your estate plan.

Increased Income

Did your salary increase significantly from last year? Lucky you! You may want to consider creating a trust to establish funds for a future purpose such as paying for a grandchild’s education. Trusts can also be used to help support charities or hold that new vacation home. There are a variety of trusts that can fit into an estate plan, even one for your fur babies.

Acquired Assets

Did you finally save up enough money to buy that lake house you always wanted? Make sure you include your new weekend getaway home in your estate plan. If it’s something you’d like to keep in the family for years to come then include it in your Will or consider a Trust. That will ensure that your assets and property will go to the people you want to inherit from you.

Shifted Status

If you filed a joint tax return last year, but now find yourself filing on your own because of a divorce or death, or maybe the reverse because you got married, don’t forget to update your estate plan too. Without proper documents in place, the wrong person could have decision-making privileges if you should become incapacitated or pass away.

Many of the same life changes that affect your tax returns can also impact your estate plans, so now is a good time to review your Will and other documents to be sure they still reflect your wishes.

Caring for Your Aging Parents and Children

A unique situation is on the rise in the United States and could affect you now or in the future. I’d like to discuss the challenges and provide some resources to help you better manage what lies ahead. Let me start with a few interesting statistics, according to recent research.

78.74 years. That is the average life expectancy in the U.S. That number hasn’t changed much in decades.

26.3 years is the average age a woman in the U.S. gives birth for the first time, and that number is steadily increasing.

As the average life span stays pretty consistent and women have children at older ages, it is no wonder people are finding themselves caring for their aging parents while simultaneously raising and caring for their children. There is a term for this; the sandwich generation.

Adults who are part of the sandwich generation have a living parent age 65 or older and are either raising a child under the age of 18 or supporting a grown child. According to a Pew research study,  sandwich generation members are mostly middle-aged: 71% are 40 to 59 years old, 19% are younger than 40 and 10% are age 60 or older (click here for more information on the makeup of the sandwich generation).

If you are a part of this group, you are undoubtedly challenged by the emotional, physical and financial demands of juggling the roles of caring for your own children and your aging parents. The obligations demand considerable time and money. Taking on that responsibility can be difficult and at times overwhelming. With so many people relying on you, it is that much more important that you take the time to carefully plan for the stressors that can come up along the way.

Through this blog, I hope to help you:

  • Set the groundwork for a solid plan
  • Have the tools you need to face an important conversation
  • Prepare for potential crises
  • Put your plan in place for your parents and children with critical estate planning documents
  • Deal with the financial impacts of care
  • Determine how to divide your time between your family and your parents while caring for yourself

For some, you may already be caring for your parents. If you haven’t taken some of the following steps and they still apply to you, get started immediately. I cannot stress this enough. You may already feel like you’re behind, but it’s better late than never to put yourself in a position to succeed. If you are preparing to care for your parents, these tips are equally as important.

Have A Family Meeting

A reliable and thoughtful plan should start with an open and honest conversation. Depending on the age of your children and the mental state of your parents, the discussion can be held separately or together. It can be beneficial to have both parties there if it makes sense. The important thing is to talk about the necessary topics sooner rather than later.

Let’s be honest, no one wants to talk about or believes that they will be too sick or old to care for themselves, but the fact of the matter is, it’s a part of life that needs to be dealt with. If you don’t have the conversation with your parents while they are still in good health and of sound mind, there’s a good chance you’ll find yourself unprepared if a crisis occurs. A vague conversation years ago about your mother’s wishes may not be valid anymore. She may have wanted to go into a care facility at some point, but now would prefer to stay home. Or dad may want to be removed from life support now even though he once believed he wanted to fight through it all. It’s not uncommon for siblings to be in a situation where there is no healthcare directive and they disagree over how to handle mom or dad’s health. Empower yourself by being prepared. These are preferences your parents may be unlikely to bring up unless you initiate a conversation. If you simply ask, you’ll be able to have some peace of mind and the ability to honor their wishes.

These are deeply personal and sometimes difficult conversations. Sit down with your parents in a non-threatening and relaxing environment to discuss their preferences. Having your older or grown children present for some of these conversations could allow them to help plan for how they can help if the plan involves home care and so they realize the additional burden you are taking on. Perhaps they will be more understanding and more likely to pitch in. It also doesn’t hurt to prepare them for a similar conversation with you someday.

Plan for Your Parent’s Future

While talking with your parents, you need to cover some specific topics. Make sure they know there are no right or wrong answers. Here are some questions to get the conversation started:

  • What kind of lifesaving procedures would you want performed if necessary?
  • Are there any lifesaving procedures you do not want performed?
  • Who do you want to make medical and financial decisions for you if you become incapacitated?
  • Would you rather live in an assisted living facility or have in-home assistance?
  • How will you pay for a nursing home should that be necessary?
  • Are you struggling financially?

Answers to these basic questions will help you take one of most important steps you can take towards helping your parents in the future: making sure their estate plan is up to date.

Every estate plan needs four documents:

  • medical power of attorney appoints a person to make medical decisions if you are unable to do so. A medical power of attorney can also include a list of specific procedures you do or do not want allowed.
  • durable (financial) power of attorney appoints a person to make financial decisions if you are unable to do so. This is a flexible document that can be used to give limited or unlimited power over your financial affairs.  It can become effective immediately or only if the named individual becomes incapacitated. Even if this document is in order, you may still find yourself taking on some of the financial burden of caring for your parents.
  • living will express your wishes for end of life decisions and can appoint a person to make decisions if you are unable.  This document differs from a medical power of attorney because it is only effective if a doctor has determined you have a terminal or irreversible condition.
  • will details your wishes after you pass away. A will allows for a smooth transition for the loved ones you leave behind.  It will designate someone to take control of your estate, care for your dependents, distribute your property and make the transition as painless as possible for your loved ones.

The two especially important things that need to be discussed are executing powers of attorney and taking record of their assets and key documents.

Again, a power of attorney allows a designated person to make decisions on your parents’ behalf regarding their property and health care.  Knowing where key documents and assets are eliminates confusion in the event of incapacity.  Having these two things in place will ease some of the stress. The earlier you have this conversation with your parents the better prepared you will be for the future. It is important to loop in an experienced estate planning attorney early on in the process to make sure you are not leaving any question unanswered and that the documents are executed properly.

Plan for Your Family’s Future

Protecting your family’s needs is always a top priority. Many of the same key documents are required for your estate plan, but a few additional things need to be considered. For example, designating a guardian for your minor children is very important in the event you become incapacitated or pass away. Trust funds, life insurance policies and college funds should also be discussed. If possible, maintain a savings plan while you still have the ability to plug money into it. The future has many what-ifs, but your legal and financial affairs shouldn’t be one of them. Give yourself some peace of mind so you can get back to juggling all the other parts of your life.

Since our lives are constantly changing, I suggest you review your legal documents on a yearly basis or when a major life change occurs, such as a divorce, a death or an addition to the family, to ensure they align with your current circumstances.

Balancing it All

Every situation is different. You may be a single parent with young children, or the sole provider for your parents and your grown children. Whatever your circumstances are, you’ve got a full plate. Every caregiver’s situation is unique but there are always common factors which bridge these situations.

Some of the unique issues that come up for the sandwich generation can include:

  • Dealing with the financial impact of caring for your parents while caring for your own family
  • How to protect your emotional health

Finances

Assessing your financial situation is imperative.  Hopefully your parents are open and honest about their current financial status. Perhaps, your parents have prepared for the future and have adequate resources for their care.  In other cases, they don’t have enough resourses and may already be in a bad situation financially. If you’re not sure, you’re not alone. Older people can have a difficult time opening up about their finances. Here are some things to look out for to identify a financially bad situation:

  • Calls from creditors
  • Forgetfulness when it comes to financial matters
  • Unopened mail

If your parents have the funds to cover their care, make sure you or the durable power of attorney sticks to the plan that you have laid out. If you are not one of the lucky few that have it all covered, I suggest you explore taking these steps to ease the financial burden:

  • Assess your financial resources. You can’t plan if you don’t know your assets, liabilities and cash flow.
  • Make sure everyone is aware of the costs and available assets.
  • Make a plan to cover the costs. This could include cutting back on certain expenses and investments.
  • Tap into your family’s resources, such as having siblings and anyone else involved chip in and lend a hand.
  • Investigate the options that exist for assistance, such as Medicaid, Medicare and VA benefits

Throughout the process of figuring out how to financially cover the care for you parents, it’s important to factor in the needs of your own family. Caring for so many people can be costly. You may have to sit down as a family and decide which expenses are necessary and which can be eliminated. Having everyone involved and on the same page can help relieve some of the financial burden. For example, if you have a recent college grad who is searching for a job and living off your buck, it may be time for them to seek part-time work.

Emotional Health

While having all of your documents and finances in order is great, don’t forget to look out for your own emotional wellbeing. Taking care of everyone should not come at your expense. Here are some general tips for making sure you don’t get lost in the mix:

  • Don’t be afraid to ask for help. If you have a solid support system with family and friends, they will be likely to step in and help.
  • Use the assistance of resources in your area, such as support groups or connections through your church.
  • Take the time to do things you enjoy. Listen to music, take a long bubble bath or go out to dinner. You can still have fun despite your many responsibilities.
  • Don’t neglect your relationships.
  • Stay in tune with your body. Keeping yourself healthy is important for keeping everything on track.

Remember, if you are squeezed into the sandwich generation, you are not alone.

Professional Help

Getting assistance from the right professionals to help guide you through the legal and financial planning can really save you money and frustration in the long run. An experienced estate planning attorney, a certified financial planner and a therapist can work wonders.

Final Thoughts

You may have read this article and thought about how you are not as prepared as you thought you were. Taking these steps can certainly help you be prepared for the “unknown.” If you have any questions about your unique situation, don’t hesitate to reach out to me.

No Will. Now What?

February is a month notoriously marked by love and romance. While many people are struck by cupid’s arrow, others think Valentine’s Day is just a scheme created by greeting card companies to make a buck. Regardless of your stance, there’s no denying that your loved ones deserve nothing but the best.

I’ve said it before and I’ll say it again, leaving a Will is one of the most generous and thoughtful gifts you can give. While you may not exactly want to present your Will over a candlelit dinner, this time of a year is an excellent reminder that taking care of your loved ones long after you’re gone is the ultimate gift that keeps on giving.

As a reminder, a Will is a legal document that sets forth your wishes regarding the distribution of your assets and the care of any minor children. To ensure that your wishes are carried out and your loved ones are cared for, you want a Will in writing. Simply put, a Will simplifies the process for your heirs. A properly executed Last Will and Testament assures that your property passes to the loved ones that you choose. Since a Will is a legal document, it should be prepared and reviewed by a qualified Estate Planning Attorney.

What Happens If You Die Without a Will?

When you die without a Will, an already difficult time can become a complicated legal situation for your loved ones. The term for dying without a Will is called “intestate.” Dying intestate will then Close-Up Of A Senior Woman Thinkingtrigger a chain of events that are defined in the Texas Estates Code.  Intestate laws vary state by state, but they generally follow the same path to determine who the heirs will be.

We take estate planning very seriously at our firm and work hard to provide the community with thoughtful and useful legal information. That is why I want to be clear, you are not required by law to have a Will.  It’s also an extremely easy task to put off. I get it, the days get busy and the years go by without the topic coming up. Many people believe you should be a member of AARP or be wealthy before you put a Will in place. But that’s just not the case. Whether you are young or old, rich or poor, you should consider creating a Will.

Most Common Reasons Texans Die Without a Will

As an estate planning attorney, I’ve heard every excuse in the book. The most common reasons Texans fail to take advantage of their ability and right to leave a Will, controlling the distribution of their assets are:

  • Lack of Property: Even if you have little to no property, it still has to be dealt with after your passing. Without a Will, no one has the authority to make decisions, thus making the process more stressful for those you leave behind.
  • Lack of awareness or Indifference: According to an AARP survey, 2 out of 5 Americans over the age of 45 don’t have a will. Creating a will is extremely important to take care of your loved ones.
  • Complexity: Drafting a Will does not have to be complicated. Most Wills are very straightforward.
  • Time and Effort: Meeting with a skilled estate planning attorney in person a couple of times may be all that is needed to put your Will into place. Follow-up calls can clear up any loose ends. In the end, the time spent is a good investment.
  • Legal Fees: The cost of hiring an estate planning lawyer and ensuring you have a legally sound Will is worth it. It also can prevent family confusion and squabbles.
  • Admission of Mortality: It’s hard to come to terms with the idea that you won’t be here someday, but life goes on and leaving a Will makes it easier on those you leave behind.
  • Reluctance to Reveal Private Information: Any information discussed with an attorney remains confidential.

Many people are naïve about the critical importance of a Will. A Will allows you to determine who gets anything from pets to property. It also allows you to name a legal guardian for your children if they are minors.

What Happens to My Minor Children If I Don’t Leave a Will?

If you are a parent, especially of minor children, you probably prioritize being a parent as one of, if not, the most important job you have. It is your role to ensure your children are safe, healthy and loved. If you failed to put your wishes into writing before you pass, your children’s care will be as the state sees fit. This can be very stressful for your children and result in some unsettling situations where children are split up or they end up with someone whom you never would’ve chosen. The state may prioritize location, lifestyle or relationship. There is no single rule for how it could go. There are so many possible outcomes for your children if you fail to properly plan ahead for them. For that reason alone, preparing a Will is especially important.

So How Will the State of Texas Handle the Distribution of My Estate?

If you die without a Will, the State of Texas essentially creates one for you. I can’t tell you how many times I’ve heard people say “my family knows what I would want.” While I encourage open conversations about your wishes with family and loved ones, it’s not enough to ensure your wishes are carried out. If you are a resident of Texas and die without a valid Will, your property will be distributed to your heirs as determined by Texas law. Your assets will be distributed according to a statutory formula that doesn’t take into account your wishes or unique circumstances.

Let me put this into perspective with a quick fictional story about a woman we’ll call Gloria. Gloria was diagnosed with cancer and eventually became too ill to care for herself. She lived in her own home and preferred to stay there as her health worsened. Since none of her children were willing to move in and care for her, her grandson Eric stepped in. As an expression of her gratitude, Gloria promised him that he would get to keep her home and rather large savings after she passed. As Gloria was dying, her daughter drained her bank account and evicted Eric from the home. Unfortunately, she passed away without ever putting her wishes into writing. Despite making her plans clear to many people, there is nothing that can be done. In this scenario, Gloria did not have a spouse and was survived by all her children. The state determined that Gloria’s property would be divided between her children. This could have all been avoided if she had left a Will ensuring Eric would get her home and money. This story illustrates just how the State of Texas could handle a unique situation like this.

Your promises mean nothing in the real world without a clearly stated legally sound document. The law supports and gives you the freedom to decide how and to whom your assets are distributed when you die by making a Will. Without that Will, the State of Texas handles the distribution in a variety of ways.

The Deceased is Married

You would think that if you are married and die without a Will, that your spouse inherits your entire estate. That may not always be the case. The division of property at that point is dependent on whether it is

Community Property

Simply put, community property refers to most property acquired during the marriage.

  1. If you are survived by a spouse and children, your surviving spouse in most cases will receive the community property if all your children are also of your surviving spouse.
  2. Otherwise, if you have children from someone other than your surviving spouse, your children can receive your half of the community property while your spouse will only retain their own half.

Separate Property

Separate property is typically property acquired before marriage. It can also be property acquired during marriage by gift, devise, or descent. Property received by devise or descent is property received from the estate of a person who has died.

  1. If your property is characterized as separate and you have a surviving spouse and children, your spouse could receive 1/3 of your separate property and a life estate. A life estate is an estate limited in duration by life. In other words, they would have the right to use your separate property until his or her own death.
  2. If you are survived by parents and siblings, they can receive half of your half of your separate property, while the other half could go to your spouse.
  3. However, if you have no children or other descendants, your surviving spouse is usually entitled to all your separate property.

The Deceased is Single and Doesn’t Have Children

If you are not married and do not have children, the state looks to parents, siblings or other relatives on either side of the family to find a qualifying heir. If someone dies and leaves behind no surviving heir, the estate would go to the State of Texas.

The Deceased is Unmarried and Has Children

You may notice a trend from above. The state code prioritizes the descendants by closeness in the family tree. If you are single and have children, then in most cases all your property would go to them and their descendants. If all your descendants share the same level of relationship (meaning all are either your children or grandchildren) then they can receive equal shares. However, if the descendants have different levels of relationships (for example, if some of your children predecease you, leaving children or grandchildren of their own), then the younger generations would only be entitled to the share the older generation would have received had he or she survived.

Unique Situations and Other Questions

No two families are the same. While the state qualifies inheritance without a Will quite clearly and specifically (as seen above), there are still many alternative scenarios that come up.

What About My Stepchildren?

I have been asked many times about how stepchildren play into all of this. Let’s say you love your stepchildren like they are your own. Or you have acted as a mother or father to them nearly all their life. They will not automatically inherit from their stepparents under Texas law if you don’t create a Will. If you want to guarantee your stepchild benefits from your estate, of course, I advise you to put it into a Will.

What if the Heir Is a Non-Citizen?

According to common law, a non-citizen cannot acquire real property. Real property, also referred to as real estate, is any property attached directly to land as well as the land itself. On the other hand, if they come from friendly countries they could acquire and transmit personal property.

Does Is Matter How Big My Estate Is?

If your property and assets are less than $100,000, in many cases no formal court proceeding is required. Family members can file a Declaration of Small Estate and then are allowed to collect and split the deceased’s assets.

What Can Your Family and Loved Ones Do Now?

There are not a lot of options for your family if you die without a Will. By not leaving a Will, you inevitably cause difficulties for those you leave behind, at a time when they are likely already distressed. They will likely have to go through a lengthy legal process that involves time and money for them to help determine who will gain power over your estate. If a Will had been prepared, this process would be unnecessary.

There is no way I can address every possible outcome if there is no Will left, if you have any specific questions about your case, please don’t hesitate to contact my office.

I cannot stress the importance of creating a Will enough. I hope this article is useful for those who are dealing with a death with no Will left behind. I am also optimistic that this information will reassure anyone who is without a Will to seriously consider putting one together. This is done best with the assistance of an Estate planning lawyer to ensure you’ve taken the proper steps. I encourage you to check this crucial task off your to-do list sooner rather than later. You never know what tomorrow holds in store.

A Complete Guide to Selecting the Right Executor, Trustee or Agent for you

02C29763It’s hard to believe 2017 is here already. The new year marks a special time when many people both reflect on the past and plan for the future. Whether you are a planner or not the setting of New Year’s resolutions is a tradition many people observe much like eating black-eyed peas or kissing someone at midnight. The standard resolutions are getting organized or in better physical shape.   This year consider adding estate planning to your list of resolutions.  Estate planning is a task that is easy to always put off until later or next year.  Estate planning requires you to think of the unpleasant and acknowledge that we don’t know what tomorrow holds in store. You are likely to find, your estate plan will allow you to face the future knowing you have taken steps to protect, provide and plan for yourself and your loved ones lending some certainty to the uncertain future.

One of the most important decisions you’ll make is selecting who will control your assets during your incapacity or after you’re gone. That means the executor of your will, the trustee of any trusts you set up and the agent for your power of attorney. No matter how thorough your estate plan is, choosing the right person or combination of people to carry out your wishes is essential. Start by understanding the responsibilities of each role and then consider who can best fill your shoes in that situation.

Executor Responsibilities

The executor or administrator’s role is to ensure that the terms of a person’s Will are followed or if no Will exists to ensure the estate is transferred in compliance with state law. The law requires an executor or administrator because someone must be responsible for the following:

The Will can also impose duties not required by law, such as choosing beneficiaries, distributing personal property or naming guardians for minors. The executor encompasses many roles, including the overseer, manager, distributor and possible peacemaker in the execution of your estate plan. While it is crucial to select the right executor to see your plans through, they can hire professionals to help them with some matters.

Choosing an Executor

Don’t expect to Google “Who is the best executor?” and get one result. There’s no consensus, even among lawyers, on who makes the best executor. The reason there is no one size fits all answer is the job of the executor depends entirely on your circumstances. Some people choose to have a professional executor while others prefer family or friends and some find a combination of professional and non-professional to be the answer.

Appointing a professional executor is done for many reasons including no close living family members, discord between family members, to ensure there is no conflict of interest and the estate is more complicated than the abilities of the closest family members to name a few. Professionals don’t stand to gain under the Will beyond their fees. It could be a lawyer, a CPA, a bank or trust company. In some cases, this can prevent a Will being contested by disgruntled relatives who may be concerned about their family members cheating or mishandling things in some way. Another reason to choose a professional executor is if you don’t want to put the burden on family who may be incapacitated with grief or you simply don’t know of anyone that may be up for the job. Keep in mind; it could take years to carry out of all of the requirements and procedures. If you have a large or complex estate, it might be wise to hire someone, such as a professional executor.

If you don’t want or need a professional executor, family members and friends who have demonstrated they are trustworthy, mature, honest, conscientious and good with people are excellent candidates. Some people find comfort in knowing that a spouse, child or friend is managing their estate once they are gone. They feel these individuals will be more invested in making sure the probate process goes as quickly and as smoothly as possible. Remember, they can always hire some outside help if it gets too complicated. Another factor to consider is where someone lives. Many estates can be managed from a distance with no difficulty but that is not always the case.  If you believe your estate will require someone to be in the area for a prolonged period, you may want to choose a person who is local, retired or has a very flexible job.  In some cases, an executor may need to spend significant time working with the courts in the deceased’s area. Appointing someone who lives in the same city or with the ability to remain in the city may be wise. Consulting with your attorney on your selections will help ensure you have considered many of the ramifications of your choice.  This is particularly important if you plan on naming someone that lives out of state so you can consider the impact on management of your estate.

Ultimately, it is essential to choose an executor who is willing and able to do the job. It can be helpful to speak with the individuals before naming them to discuss the responsibilities involved. Be honest about the amount of work involved. A good executor can mean the difference between a complicated and drawn out probate process and a timely distribution of assets. Most importantly, selecting the right executor can provide the peace of mind that is needed during a difficult time.

Duties of a Trustee

If you create a trust, you must designate a person or institution to manage the trust that position is the trustee. A trust is merely a contract between the person who formed the trust, called the grantor (you), and the trustee. If your will leaves assets to a trust then the executor will transfer those assets to the trustee for management and distribution according to the terms of the Trust.  It is possible for the executor and trustee to be the same person.

The trustee acts as the legal owner of trust assets, and is responsible for handling any of the assets held in trust, tax filings for the trust, and distributing the assets, in accordance with the terms of the trust. They are obligated to follow your instructions and to manage the trust in a reasonable manner. Unlike an executor, (whose duties may be completed within months), a trustee’s duties can continue for generations.  This is one of the reasons why the biggest decision when designating a trustee is whether to use a family member or a professional trustee.

Naming a Trustee

Any person may serve as your trustee, provided the person is legally competent, meaning over 18 years of age and capable of managing his or her own affairs. Just like an executor, a trustee should be someone who is trustworthy, mature, honest and conscientious. In most cases, it is important to have a certain amount of financial savvy to understand the complexities of a trust.

If you don’t know anyone who meets these qualifications, you might want to consider using a professional trustee. This can be a bank or trust company, a professional trustee, an investment advisor or manager, an investment banker, an accountant or a lawyer. While it is not required to have experience in managing a trust, it may be a factor that you find important. Keep in mind, this option does come with a price tag that will be higher or that may not exist for family or friends.

It is common for people to name a family member to serve as a trustee. Typically, family members have an added personal investment to see the trust through with success. They also may be willing to work without a fee or at least a lower fee than a bank or trust company. If you don’t foresee any family conflicts and know someone who is willing to take on the responsibilities, this might be your best option. When choosing family or a friend, you’ll need to consider who the successor would be in the event that they become incapacitated or die.

There is a third, often popular choice if you are nervous putting all of the responsibilities on a family member or are uncomfortable letting a stranger manage it. Some people find benefits in combining both options. You can choose a family member and a professional trustee as co-trustees or name one as trustee and the other as trust protector.

Regardless of who you choose, it is wise to reevaluate your decision every few years to ensure your decision today is still your best option down the road. It helps to have an attorney present to help you weigh your options.

Role and Purpose of an Agent

Another important document you should consider adding to your estate plan is a Durable Power of Attorney. If you become incapacitated, you need someone to act on your behalf to make financial decisions for you. If you become incompetent or incapacitated without preparing this document, your family will not be able to make important financial decisions or pay your bills.  Perhaps more importantly, the person of your choosing might not be the person the court will choose to take action on your behalf.  The person/s given the power to act on your behalf is called the agent.

A Durable Power of Attorney appoints an agent to handle legal and financial responsibilities. It can go into effect immediately or once you become incapacitated. Once it is active, the agent makes decisions including paying your bills, collecting income, filing taxes, and any other powers granted in the document. This is a very flexible document that can be used for a single transaction or to give unlimited power over all of your financial affairs.  Without this, your loved ones will find themselves in court requesting the authority to manage your financial affairs.

The Durable Power of Attorney allows you to be prepared for an unexpected accident or illness as well as issues that come with aging causing you to have trouble handling certain aspects of life. The Durable Power of Attorney can be customized to fit the needs of your situation. Ultimately, it is up to you. This is best done with the assistance of an estate planning lawyer to ensure your wishes are made clear.

Selecting an Agent

It is always difficult to picture a time when you can’t make financial decisions for yourself. But if something unexpected were to happen, you’d want someone you can rely on taking control. When an agent acts on your behalf, they must act with care, competence and diligence. Ultimately, they must have your best interests at heart. Consider someone who shares the same religion or beliefs as you. An agent should be someone who you believe has the capacity to take on great responsibility in a possibly troubling time. Other factors to consider are maturity, trustworthiness and overall wisdom. An agent is given a great deal of power, so many factors can affect your decision. If you don’t have a family member or friend suited for the job, you can use a professional agent. A proposed agent has the right to decline to act as an agent, and a current agent has the right to resign for any reason.

A Common Thread

An executor, trustee and agent all have their unique functions in your estate plan. Each has specific roles and responsibilities that could affect you and your loved ones for many years. Their jobs are very different but one thing is clear across the board, choosing the right person for the job is essential. Now that you know what will be required of each role, you can make a more informed decision about who you know and trust to manage these important aspects of your assets or estate. With the right people in place, your wishes are more likely to be honored.

Taking the time and attention to make a plan can be the best decision you ever made. An estate planning attorney can help you with your estate planning New Year’s resolutions, and help to ensure your family’s needs and goals are met.

Disinheriting a Child or Grandchild

With Halloween behind us, it’s time to look forward to the holiday season. As North Texans, we may not be able to reap the benefits of a long, chilly and colorful fall, but it’s finally starting to cool down. That means we can bust out those boots and scarves, appropriately drink a pumpkin spice latte, and start making plans to spend time with family. Thanksgiving may be your first chance in months to gather with loved ones to catch up and overstuff your bellies. It is also an excellent time to think about planning for the future.

Having a will gives you the peace of mind that if today is your last day, you’re prepared. A will puts the distribution of your assets in your hands instead of the state statutes, and ensures that your property and other belongings will go to the people of your choosing. This could include your spouse, children, grandchildren, out of wedlock children, stepchildren, siblings or even friends. If you are a parent or a grandparent, it is often important for you to make sure your will takes care of your children and grandchildren.

While reuniting over turkey, you may notice that some loved ones have changed, and not for the better. Maybe they have made some irresponsible life choices or you are just reminded of their bad habits. Whatever the reason, sometimes you change your mind about who you want to include in your will.

Deciding to Disinherit

In Texas and many other states, you can legally disinherit an adult child or grandchild. To disinherit someone is to intentionally prevent them from receiving property from your estate after you die. The decision to disinherit a child or grandchild can be emotionally trying and can be legally difficult to do.  Including someone as a beneficiary in your will is usually done with deep thought and consideration, so the removal should require the same amount of attention. You may initially struggle with the idea of it, so creating a list of reasons can be helpful.

No Right Answer

If you ask a hundred people why they chose to disinherit someone, you’ll probably get a hundred different answers. Each person is unique, which is why there is no guide book to life’s decisions such as this. Here are some tips and guidelines that can be helpful:

  • Avoid using disinheritance as a threat to manipulate someone’s behavior. Little Jimmy may have a drinking problem, but using money to get him to stop is probably not going to work.
  • Don’t use disinheritance as a punishment. Don’t let a temporary tiff or disagreement outweigh the big picture. You can always write them back in, but if you change your will every time there is an argument, it will cost you.
  • Generally, social standards create a reasonable expectation that children will share a parent’s estate equally. But this doesn’t have to be the case. Sometimes you feel one child or grandchild has a greater need than another. If you have a child or grandchild who has a significant financial need due to a disability or other special needs, you may want to leave them a larger portion of your assets. Another possibility is one child has achieved great personal wealth so the inheritance would be of greater benefit to the less wealthy child.
  • People can benefit in different ways. Life insurance is not considered inheritance. Some people choose to leave less inheritance to one person if that person is named as a beneficiary on your life insurance. You may technically be disinheriting someone while still taking care of them.
  • It is not uncommon for feelings to be hurt along the way, but remember, your will is a reflection of your wishes. Be sure to think the decision through. Don’t act hastily. It can cost you unnecessary time, money and stress.

How Do I Disinherit

The best way to disinherit someone may be to add a provision to your will. It is generally advisable to plainly and clearly state your intention to omit the individual. Some people choose to include a specific statement of their intent, such as, “I intentionally leave no provision under this will for my child, Jimmy Smith.” You can also include your reason for disinheritance, such as I adequately provided for my child during their life. It is often a matter of preference.

But there are also good reasons to omit the reason for disinheritance. One may be that it prevents the child or grandchild who is omitted from challenging the disinheritance based on the reason listed. For example, Jimmy Smith could argue that he was not adequately provided for in his life by you. Then it is left to the scrutiny of the courts. Another reason to withhold an explanation for disinheritance is that it could prevent the airing of harsh statements about the individual. The disinheritance speaks for itself.

Keep in mind, a will may not be the only place you need to remove a potential heir. Oftentimes life insurance policies and retirement accounts are overlooked. Having a legal expert help you through the disinheritance process will ensure you have checked every box.

An Alternative to Disinheritance

If you are looking for a less drastic measure than disinheritance, there are other ways to ensure a child or grandchild does not have control over your hard-earned estate but still benefit.

If you are not confident in how the estate would be used by a beneficiary, create a trust so that the child doesn’t have control over it, but rather a reliable individual who acts as the trustee. You can keep your assets in a trust or have their inheritance fund a trust which provides for your children, without actually giving the assets to them.

Factors to Consider

No matter what, you should review your will with your attorney every 3-5 years or when there is a major life change. Major life changes such as births, deaths, marriages and divorces may also result in a desire to change the terms of your will. Our lives are ever-evolving. If you are considering disinheriting someone from your will, you should consult with an experienced estate planning lawyer to walk you through the process and help you accomplish your goals.

Blended Families – How It Affects Planning

If you found that your first marriage didn’t end in a “happily ever after” and you have another chance at it, hopefully you’re a little bit wiser. Second marriages and blended families present their own set of issues. A blended family is any family where the children in the home are not the children of the two parents also living in the home (commonly known as step-children). Any time you are faced with multiple potentially conflicting family groups, you want to make sure you are handling each group as you would like. Having a thoughtful plan in place is the best way to protect your family from whatever may come.

Not every blended family is going to look like the Brady Bunch. There are numerous aspects of forming a new family that can create challenges.  Everything from the number and age of the Brady Bunchchildren to the attitudes and actions of the other biological parents as well as the respective financial statuses of the new couple.  The new couple will have separate property and may or may not be planning to have community property.  The new couple will need to determine how they want to provide for each other, their own children, their step children and any children they have together.  While taking care of your spouse and the children may be a top priority, implementation can be rocky. Whether it’s sibling rivalry, financial difficulty or even the actual estate planning there are many resources out there to help you work through these difficulties. The following is a guide to help you take on some of the issues associated with planning for your new family.

Estate planning is a road map for what happens if you are incapacitated or after you have passed away. An estate plan should include at least these four key documents: will, medical power of attorney, durable (financial) power of attorney, directive to physicians (living will). However, there are many other documents that can address the specific needs of your situation.

Estate planning for all families begins with the same foundational steps, but if you are a blended family, additional steps may need to be taken to ensure all of your loved ones are protected and your wishes are followed.

Communication

Every good plan starts with communication. The first step is to have an open and honest conversation with your new spouse about your current finances, goals for the future and how you see your assets being distributed. Sometimes this conversation is a time to discuss what legal documents include your ex. You’ve combined your life with someone new and need to make sure all documents reflect this. Bring these legal documents when discussing your options.  Recognize this should not be a single conversation but a dialogue that will continue throughout your life.  Your goals may change over time based on the duration of the marriage, the age of the children and the nature of the assets to be distributed.

It is essential to think through as many scenarios as possible, no matter how difficult. Your wishes may change based on who passes away first. These conversations can be emotionally charged, so it’s important to approach it with an open mind and as stress-free an environment as possible. Ultimately, these talks will be beneficial in the long run. Consulting with an estate planning attorney along the way to provide education, insight, recommendations and options can help you address the potentially conflicting goals.

Wills

A will is important for everyone, but they are critical for a blended family and simplifies the probate process for your beneficiaries. A properly executed Will assures that your property passes to the loved ones of your choosing.  It provides detailed instruction on how to distribute your assets upon your passing, along with other important issues. Sometimes people forget to change their will when they get divorced and remarry. Joining together a new family is an excellent time to revisit the issue because you may want to treat your minor children with your current spouse differently than your adult children from a previous relationship. You may also want to include step-children, who would not be included under the law.

One of the biggest concerns in planning for a second marriage is making sure your assets ultimately end up with your chosen beneficiaries. Assets can be tangible or intangible and the value can be financial or emotional. This can include your house, car, jewelry, personal property, investments, insurance, retirement account, family photos, heirlooms and many other things.  You may also have both separate and community property which is treated differently under the law.

Don’t underestimate the usefulness of a well-thought out list. If there are specific items you’d like to leave your children, start jotting them down. You can later add them to your final plan. Not being specific about your wishes is a common problem but this mistake can be magnified in a blended family. You don’t want your children to inherit unnecessary stress or a legal battle after your passing. The same is true with your spouse. You may have community property, you may have separate property, but you want to make sure things happen according to your wishes. Not what the state statute says should happen.

These are some of the reasons why a will is critical in a blended family. It allows you to create a legacy that treats every member of the family exactly as you wish.

While Texas recognizes handwritten Wills, an attorney prepared Will should ensure your document meets the state requirements.  It will also help you to understand the impact of the decisions you are making.

Trusts

If you want to provide for both your spouse and your children should something happen to you, then outright gifts of property may not be the best solution. Many blended families use trusts to provide for a spouse, while simultaneously ensuring their children end up with property as well.

The use trusts can be an important estate planning technique for blended families. A revocable trust is established during a person’s lifetime and the trust document names a trustee and one or more successor trustees to manage the assets that are transferred to the trust.  An individual might name themselves as the trustee and their partner as the successor trustee.  If both spouses contribute assets to the trust, then they may choose to be co-trustees.  In a blended family, it is important to document what should happen when each spouse passes away and the terms under which the trust should be terminated.

Another viable option is to create a testamentary trust (or trusts). The testamentary trust could provide for the surviving spouse during his or her lifetime and, upon the death of the surviving spouse, the remaining trust assets could pass equally to the children or step-children of the deceased spouse.

Powers of Attorney

A Power of Attorney is a document that gives a trusted individual the ability to make decisions for you. In Texas, that can be a Durable (Financial) Power of Attorney or a Medical Power of Attorney.  Each document will perform exactly as the title suggests. While Texas gives very broad authority to your spouse if you are unable to act, there are some exceptions and your spouse may not be the best person to take action. Additionally, if something should happen to both you and your spouse, you may need someone else to take over the decision making. For example, you and your spouse go out to dinner and get in an auto accident and you are both hospitalized. Who is going to pay the bills or make medical decisions for you until one of you recovers enough to resume that? So often for married couples, it is that alternate agent that is the important decision.

Financial Power of Attorney gives you the opportunity to name a trusted individual to manage your financial affairs and legal decisions if you are not capable of doing so during your life. When you divorce, your Power of Attorney naming the previous spouse is invalid but it should be revoked to prevent a bad actor from taking illegal action using the previous Power of Attorney.

Medical Power of Attorney is much like Financial Power of Attorney in that you name someone you trust to make decisions about your health care if you are no longer capable yourself. Discuss your feelings with your spouse and alternate decision makers regarding end-of-life care, organ donation and burial arrangements. You can’t predict the future. Having a Medical Power of Attorney in place is especially helpful for medical professionals in the event of an emergency.

If you want to name your adult children, step-children or siblings to act on your behalf, you need to document your wishes. Especially if you want to name your step-children as Agent in a Power of Attorney. The state will not recognize them otherwise. You should have current Powers of Attorney in your estate plan and they should be consistent with your state of residence.

Taking Care of Minor Children

If you have minor children and your former spouse has been removed as a legal guardian or is no longer living, it is important to have a plan for their future should something happen to you.

Minors are not legally able to control assets and a guardian may have to be appointed by the court to manage any assets until the minor turns 18. There are ways to avoid court intervention while allowing your child to benefit from the legacy you will leave them. An attorney can explain your options and help determine your best strategy.

Determining who to name as your child’s guardian is an enormous decision that is not to be taken lightly. Take the time now to determine who is the right fit for you and most importantly, your child. Then take steps to make it official with a will or appointment of guardian for a child. This is especially important in a blended family. Once a court has determined a guardian is needed, the statutes determine in what order people may be considered for appointment. If the ward is a minor, the order of priority is: parents, the person (s) designated by the last surviving parent, grandparents, next of kin and finally, a non-relative. If you want your new spouse to be that person, it especially important to document this or else the court may not appoint them.

If possible, it is important to choose someone who shares parenting philosophies, spiritual values and someone who can offer a supportive and stable transition during what is obviously a traumatic time for your child. This could be your new spouse. If you were to unexpectedly pass, you may want your child to remain in the home with their step-parent. It’s not only okay but also necessary to reassess periodically. The person that was the right guardian when your child was a toddler may not be the right person 10 years down the line. You may have been single for years and named someone else. But now that you’ve remarried, it could be time to change your legal documents to reflect that.

Personal Information and Contacts

You and your new spouse may still be learning about each other, and that may include details about financial assets. Now is the time to share information regarding your 401k and bank account information.  It could also be time to make changes or transfer those accounts. It will be so helpful for your grieving spouse and family to not have to play detective after your death.

Moreover, your new spouse may not know all of your family and old friends. Providing names, telephone numbers and email addresses for these people so that they can be notified if something happens to you will help connect your spouse with your past.

Every blended family is different and each presents its own set of challenges, both legal and personal, but a trusted attorney can help guide you through the process and help you achieve your goals.

Hire an Attorney

Every state has different requirements regarding who will have the right to make decisions if you should become incapacitated or pass away. It’s important to talk to an attorney to develop a plan that meets the needs of your unique family situation. You don’t want to make promises to loved-ones and then have a plan that leaves them high-and-dry.

Remember, things may not go as planned. It’s important to consider every possible outcome when putting together your plan. Find an estate planning attorney in your state with experience in blended families to guide you through this process. Remember, until you get your plan finalized, there’s no way of assuring your wishes will be respected.

For a full list of services that our firm provides, visit our website at http://irving-law.com/services/ or call us at 972-292-7199.

Guardianships: Everything You Need to Know

We’ve all seen those tragic turned inspirational movies where parents die and leave behind an orphan – insert just about any Disney movie. Sometimes it’s a more thought-provoking flick where an adult has lost their ability to care for themselves. Either way, this is a tale as old as time, yet so little is known about guardianship.

A “guardian” is someone who is chosen or appointed to make legal decisions for another person who is unable to make those decisions on their own. Guardianship can be over a child or an individual who has become incapacitated through age or disability.

Different Types of Guardianships

Many people assume that a guardian is someone who simply cares for someone who is unable to care for themselves. That is not the case. There are actually two types of guardians and guardianships. We commonly think of a guardian as someone who is appointed to care for the well-being of an individual; guardian of the person. There may also be a guardian of the estate, who is appointed to manage that individual’s property. The incapacitated individual is referred to as the ward by the courts.

Guardian of the Person

A guardian of the person is authorized to make decisions involving the life and person of the ward, including health care decisions and place of residence. This guardian is tasked to oversee the ward’s personal care, medical care, maintenance and support. As stated above, guardianship can be over a child or an individual who has become incapacitated through age or disability. But what does that mean, specifically?

Incapacitated by Age

A person under the age of 18 is a minor.  By law minors are unable to make legal decisions for themselves and require an adult to do so. They are considered incapacitated by age.happy family with child and shopping bags in city

Guardianship Considerations for Parents

Determining who to name as your child’s guardian is an enormous decision that is not to be taken lightly. Take the time now to determine who is the right fit for you and most importantly, your child. Then take steps to make it official with a Will or Appointment of Guardian for a Child.   It is important to choose someone who shares parenting philosophies, spiritual values and someone who can offer a supportive and stable transition during what is obviously a traumatic time for them.  You will want to have in-depth, deep conversations with the potential guardian in regards to your child.  You may want to take the additional step of putting your wishes in writing.  By leaving this letter to the guardian, they are not straining to remember previous conversations and you can easily update the letter as your child grows and changes.   That will put then in the best position to step into your shoes if anything was to happen. It’s not okay but necessary to reassess too. The person that was the right guardian when your child was a toddler may not be the right person 10 years down the line.

Incapacitated by Disability

An adult may need a guardian if they are incapacitated by disability. Meaning they cannot fundamentally care for themselves. If an adult is substantially unable to provide food, clothing and shelter, care for their own physical health and manage his or her own financial affairs they are considered an incapacitated person. The adult may be suffering from a physical or even mental condition preventing them from properly caring for themselves and their estate. In the state of Texas, an incapacitated person also includes someone who must have a guardian appointed to receive funds from a governmental source.

Getting a Guardian Appointed

If you are concerned for the well-being of an adult who you feel is incapacitated and in need of a guardian, the process can be very difficult to prove. The state requires clear and convincing evidence to enact a judgement naming an adult incapacitated. In fact, a certificate from a doctor who has examined the ward is required. Texas courts have a mandate to seek the least restrictive alternative when considering the issue of guardianship.  This both restricts the amount of rights removed from the ward and the solutions adopted to provide for the Ward.   There are some situations that allow for the required care without appointing a Guardian.  This is a complex area of law and many counties will not allow you to proceed unless you are represented by an attorney.  Furthermore, Texas requires attorneys practicing in this area to attend specific continuing education on these issues.  Guardianship of a minor is typically easier to achieve since you don’t have to go to great lengths to prove they are incapacitated.

Guardian Selection

Once a court has determined a guardian is needed, the statutes determine in what order people may be considered for appointment. If the ward is a minor, the order of priority is: parents, the person (s) designated by the last surviving parent, grandparents, next of kin and finally, a non-relative. While with a minor it is no surprise that family is first in line, that is not always the case for adults. If the ward is an adult, the following persons have priority in the following order: the person designated by the ward prior to his or her incapacity in a properly executed designation of guardian; in some cases, the person designated by the last surviving parent of the ward in a properly executed designation of guardian; the ward’s spouse; next of kin; and lastly, a non-relative.

The priority list isn’t as simple as it sounds. It’s not as easy as running down a list. There are often other considerations. Sometimes the court skips over a person with priority because they are ineligible.. A person can be ineligible because they are incapacitated themselves, notoriously bad, a minor, a person with a conflict of interest with the ward, or even someone with a lack of education or experience. If more than one individual holds the same level of priority and wants to seek guardianship, the court determines who is best qualified. In rare cases the courts appoint  co-guardians but it is not unusual for one person to be appointed Guardian of the Person and another Guardian of the Estate.

My Guardianship Wishes

For reasons listed above, it is clearly important to designate your guardian sooner than later so you can ensure you or your children do not end up in the wrong hands. By preparing a Declaration of Guardian in Advance of need, you can name who you wish to be your guardian and can name those who should never be your guardian. This is critical if those you wish to be your guardian are not blood relatives or a spouse. Have a contingency plan in place if you and your spouse choose each other and one or the other doesn’t survive or is unable to be the guardian. If you choose one child over another, have that conversation in advance. You don’t want your children having to go through a court battle during this emotional time.  Instead they should be pulling to together and relying on each other

Responsibilities of Guardian of the Person

The responsibilities are unique to each ward and their situation.  The courts will always allow a person to maintain as much control over their life as possible.    A Guardian of the Person may be determining where the Ward lives, what medical treatment they receive, who can see or visit or any other  or anything related to their physical being.

Guardian of the Estate

A guardian of the estate is someone who attends to the ward’s financial affairs. They can be the same or different from the guardian of the person. Their duty is to manage, protect, preserve and dispose of the ward’s estate in the ward’s best interests, in accordance with the law. The guardian is responsible to use the estate assets to provide for the care and maintenance of the ward. Generally, the guardian is granted the authority to make decisions on the ward’s property and estate as if it was their own. Decisions made by the guardian of the person that involve expenditures are subject to approval by the guardian of the estate in some cases. Which effectively gives the guardian of the estate the ability to exercise ultimate control. The court is responsible for settling conflicts between the two. Ultimately, the court will side with whatever is in the ward’s best interests.

Guardianship Application

When a family member, friend or interested party files an Application for Appointment of Permanent Guardian, it is usually done in the county where the proposed ward lives. As previously stated, the applicant will need to provide documentation of a thorough medical examination. In Texas, the exam must have been performed within the last four months of the application and by a physician or a psychologist licensed in this state or certified by the Texas Department of Mental Health and Mental Retardation (unless the court states otherwise). The application usually contains the following information:

  • The name, sex, date of birth, and address of the proposed ward
  • The name, relationship and address of the person the applicant desires to have appointed as guardian, and
  • The social security number of the proposed ward and of the person the applicant desires to have appointed as guardian if required by that court
  • Whether guardianship of the person or estate, or both, is sought
  • The nature and degree of the alleged incapacity, the specific areas of protection and assistance requested, and the limitations of rights requested to be included in the court’s order of appointment
  • The facts requiring that a guardian be appointed and the interest of the applicant in the appointment
  • The nature and description of any kind of guardianship existing for the proposed ward in Texas or in any other state
  • The name and address of any person or institution having the care and custody of the proposed ward
  • The approximate value and description of the proposed ward’s estate, including any compensation, pension, insurance or allowance to which the proposed ward may be entitled
  • The requested term (one year or continuing) of the guardianship, if known
  • The name and address of any person holding a power of attorney, if known, and a description of the type of power of attorney
  • If the proposed ward is a minor:
  • Whether the minor was the subject of a legal conservatorship proceeding within the preceding two-year period, and if so, where and what was the disposition; and
  • The names of the parents and next of kin of the proposed ward and whether either or both of the parents are deceased
  • If the proposed ward is 60 years of age or older, the names and addresses, to the best of applicant’s knowledge, of the proposed ward’s spouse, siblings, and children; or if there is no spouse, sibling or child, the names and addresses of the proposed ward’s next of kin
  • Facts showing that the court has venue over proceeding; and
  • If applicable, that the person whom the applicant desires to have appointed as a guardian is a private professional guardian who has complied with the requirements of the Texas probate code.

After the application is filed it must be served in person on the proposed ward.

What if You Have No One to Name as a Guardian

A Guardians is not necessarily an individual person. It can be a non-profit agency or even a public or private corporation. If a suitable guardian is not found, the courts can appoint a public guardian, which is a publicly financed agency that serves the purpose of one. The court takes this selection just as seriously as if it were a single person. They first consider who plays a significant role in the ward’s life.

Why Legal Representation is Important

There is no telling what the future holds, so establishing guardians for you and your children is not something to be put off. Consult an attorney and get started on the legal documents that put your own wishes into place. Verbal discussions amongst family and friends is not enough to protect you and your loved ones from an unexpected outcome.

If you are considering becoming a guardian, it is equally important to consult an attorney. The process is tedious and can be very expensive. It is wise to consult an attorney before going down the road of becoming a guardian, as there may be better alternatives out there for everyone involved.

 

Debbie Cunningham is an Irving attorney providing affordable estate planning and probate legal services to the Dallas/ Fort-Worth areas.  She understands the steps you should take to protect you and your loved ones.  Debbie is family-focused and wants to ensure her clients are fully informed on the options that are available for their  family.  Debbie’s own blended family has given her valuable insights into the complexities of family dynamics.

Debbie was recently selected as “Best Attorney in Las Colinas & Coppell” for 2015 by Living Magazine. Each year, the magazine asks its readers to vote in over 100 categories for the companies they consider the best.

Travel Safely with an Estate Plan in Place

Putting your affairs in order with an estate plan will make for a smoother transition to the loved ones you leave behind.  This is especially important if you plan to travel. Before you hit the road or jet set away this summer, make sure you’ve got these essential documents in order.  The preferred ending to your trip is a return home with some new wonderful memories.  However anything can happen while traveling, and being prepared will prevent your family from facing additional stress winding up your estate in the event of a tragedy.

An estate plan should include at least these four key documents:  will, medical power of attorney, durable (financial) power of attorney and a living will.  However, there are many other documents that may address the specific needs of your situation.

Must Haves

WillCapture

A properly executed Last Will and Testament assures that your property passes to the loved ones that you choose. The preparation of a will can be accomplished simply by writing it in your own handwriting and signing it, but it is safer to use an attorney to draft your will and supervise its execution.

Durable (Financial) and Medical Power of Attorney

Powers of attorney allow you to name who should handle your finances and make medical decisions if you are unable. Furthermore, there are separate documents for financial and medical decisions so that you can easily name different people for these tasks if you wish.

Directive to Physicians (Living Will)

Directive to Physicians is the Texas document known as a living will. The purpose of a living will is to provide direction to medical professionals and loved ones on the type of care you wish at the end of your life. A list of specific procedures that should or should not be performed can be included. A person can be named to make decisions for you if you are unable to make decisions for yourself.

Documents to Address Specific Needs

Declaration of Guardian in Advance of Need (Adult Guardianship)

This document allows you to specify who should be appointed your guardian if you become disabled. The Texas Estates Code provides that any person may in writing identify people who should or should not be allowed to serve as guardians of the person or estate.  The designated person must still comply with the statutory requirements should they be called upon to be the guardian.

Appointment of Guardian (Child’s Guardianship)

Guardianship takes care-giving to a new level, and it provides protection for the well-being and assets of a loved one who is under the age of 18. If not designated in advance of the need, a court will appoint someone to have legal responsibility over the care and management of a person or the estate of a child. Such a designation may include finances, food, clothing and shelter.

Organ Donation

Organ donation is another decision that should be reflected in advance directives. Putting organ donation wishes in a will does not suffice, as the will is often not found nor read until several days after the passing, and organ donations must be made immediately after death.

Disposition of Remains

This is a relatively straightforward document that allows you to specify who should be responsible for making decisions regarding your body and funeral services after you have passed.

Trusts

trust is a separate legal entity created for a defined purpose.  In estate planning that purpose is often to reduce a taxable estate or to care for loved ones who are unable to manage their finances.  Trusts can be a great tool to accomplish certain goals.

Plan Ahead

Review and utilize this checklist of estate planning documents before you travel to ensure everything is in order. This gives you and your loved ones’ peace of mind allowing you to enjoy your trip.

 

Debbie Shares her Wisdom with Channel 5 News

Debbie Cunningham was recently interviewed by Channel 5 news to share her wisdom and knowledge about estate planning. Click on the image below to watch the full story!

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