Wednesday, September 26, 2018

When tragedy strikes, what happens to the kids?

When tragedy strikes, what happens to the kids?

by Tom Alberts Sep 26, 2018

Summary: Estate planning helps parents ensure their minor children will be taken care of if the unthinkable happens. Typically, parents execute a last will and testament that nominates a guardian who would be responsible for the care and well-being of their children upon their death. During the lifetime of the parents, plans also should be made for circumstances when they are absent from their children for an extended period – whether intentional or accidental. Parents can plan for what happens and who takes care of the kids until they return or recover and until a guardian is officially appointed and can take over parental responsibilities.

Talk to most parents, and you’ll quickly find that the care and welfare of their children – morning, noon and night – is at the top of their list of priorities.

Moms and dads stay busy with the endless issues that involve their kids every day – health and nutrition, schooling, clothing, finances and friendships among them. So, when parents of young children get around to creating an estate plan, they typically do so with an eye on the distant future. Young couples starting families may assume that an estate plan, if they even have one, won’t be put into action for many decades to come. They may assume all that’s needed is a last will and testament that would appoint a permanent guardian if that ever became necessary.

Even though traditional estate planning tends to focus on the long term, parents of minor children should consider situations in life when they are absent from them or involved in an unexpected tragedy in which one or both parents become incapacitated or die.

As part of a comprehensive estate plan, a person’s last will and testament can nominate a guardian for minor children should misfortune strike. But there are situations that may require a caregiver to be available immediately to take same-day action and make decisions on behalf of the children. Parents want peace of mind knowing ahead of time that there is someone – another family member or a trusted friend – who could serve as an interim caretaker until a permanent guardian is officially appointed by a court.

The bottom-line question to answer: Who can immediately take care of your minor children if you are away from home for an extended period, if you are involved in an accident or other crisis, or, worse yet, die suddenly? Imagine if parents are in an accident and police officers arrive at the home to check on the youngsters. It’s unlikely they’d leave the kids with the baby sitter, and child welfare authorities could get involved. Parents have planning tools available to deal with such contingencies. Given the unpredictability of what may lie ahead, planning for life events can be just as important as making plans for the end of life.

Three important documents can help provide answers and solutions to all sorts of life’s dilemmas and mitigate some of the horrors in the event of your worst nightmare. They are a power of attorney for child care; a signed document with emergency instructions; and your last will and testament.

A power of attorney for child care

There are many situations in which parents may be absent from their minor children for more than a day or two. Business trips, military service and vacations are among common reasons for short-term separations from the kids.

With a power of attorney for child care, parents can plan for many contingencies and legally authorize other family members or friends to make decisions about the child’s health care, schooling and general well-being in the short term. A power of attorney for child care is an alternative to formal, long-term guardianship. The document, usually drawn up with the help of a lawyer, can ensure that the caretaker – known as the attorney-in-fact or temporary guardian – has the ability to deal with medical and other issues that may arise during the parents’ absence. The power-of-attorney document can be worded to specify its effective dates and can define what types of decisions can be made. In most states, the power-of-attorney document will need to be signed by the parent or parents and the agent and witnessed by either a notary public or two unrelated witnesses.

The appointment of a parental surrogate with power of attorney is limited to no more than a year in some states. For longer time periods, a hearing for full guardianship of minor children may be required. Also, power-of-attorney authorities do not survive the death of the person who granted them. So, their utility is confined to parental absences in the short term. Permanent guardians are nominated in a person’s last will and testament, and a guardian’s official appointment must be made by a probate court judge.

A signed document with emergency instructions

It’s doubtful the teenage baby sitter is among those with power-of-attorney authority over your minor children. A loved one or a trusted family friend is probably better suited to be a short-term or temporary guardian and surrogate decision-maker for absent parents – especially if a parental absence is more than an evening or a day or two.

A baby sitter may be given a phone number to call if “something happens” or the parents don’t arrive home at a certain time or can’t be reached. Beyond that, there may be no other guidance for the sitter to follow. But when an emergency occurs, there’s often little time to spare. The temporary guardian you have in mind – the one who has signed the notarized power-of-attorney document you took the time to create – may be unavailable on a moment’s notice or may need time to travel. Meanwhile, quick decisions about the kids need to be made when, for example, that police officer comes to the door with bad news.

If mom and dad aren’t coming home, an instructional bridge between the baby sitter and the temporary guardian is needed. That’s where a signed document with emergency instructions – something more than a simple note to the baby sitter of who to call – is useful. The emergency instructions should be specific to the day or evening of a parental absence. Instructions that are specific to that day or evening can ensure a responsible person is available and on standby at a moment’s notice. Otherwise, the police officer may be forced to place children in the immediate custody of child welfare officials until the temporary guardian with power of attorney can take over.

Although not necessarily a formal legal document, a written and signed statement by parents with emergency instructions can give authorities immediate guidance in the interim. Emergency instructions help ensure that every moment of time kids spend without their parents is covered.

A last will and testament

Because wills are only effective upon death and must be proven as valid in probate court, the official appointment of a permanent guardian can take days or weeks.

In the meantime, minor children can be left in limbo – or in the custody of authorities – until their guardianship situation is resolved in the probate process.

Most married couples leave their estates to each other so that when one spouse dies, the survivor will inherit the estate and take care of the children. As part of comprehensive estate planning, parents also must consider who would take over parental obligations if they were to die at the same time. That’s why a vital component of a parent’s last will and testament is the nomination of a guardian and successor guardians for their minor children. A lawyer can provide proper advice for parents and the many options they have in providing for child rearing, management of the children’s finances, the distribution of assets and other considerations.

Conclusion

Elements of a comprehensive estate plan typically include wills, trusts, powers of attorney for health and finances and living wills. Yet many of those tools sometimes aren’t adequate to deal with the immediate needs that unexpected events in life present, especially when young children are involved.

In the meantime, prudent parents should utilize strategies that deal with immediate and short-term care of their children – like powers of attorney and emergency instructions – until a long-term plan for guardianship can be put into effect.

There are numerous options and scenarios to consider when developing an estate plan that protects your legacy and achieves your objectives, and important decisions should be made with the advice of qualified lawyers and financial experts. Membership with Legacy Assurance Plan provides members with valuable resources and guidance to develop comprehensive estate plans that take life’s contingencies into consideration and leave a positive impact for generations to come. Legacy Assurance Plan members also receive peace of mind that a team of trusted, experienced professionals will assist them in developing legal, financial and tax strategies that will meet their needs today and for years to come through periodic reviews.

This article is published by the Legacy Assurance Plan and is intended for general informational purposes only. Some information may not apply to your situation. It does not, nor is it intended, to constitute legal advice. You should consult with an attorney regarding any specific questions about probate, living probate or other estate planning matters. Legacy Assurance Plan is an estate planning services-company and is not a lawyer or law firm and is not engaged in the practice of law. For more information about this and other estate planning matters visit our website at www.legacyassuranceplan.com.

This article written and published by:
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Friday, September 21, 2018

Estate planning success: Privacy prevails as few details emerge regarding estates of Reynolds, Miller

Estate planning success: Privacy prevails as few details emerge regarding estates of Reynolds, Miller

by Tom Alberts Sep 21, 2018

Summary: Following the recent deaths of actor Burt Reynolds and rapper Mac Miller, few details have emerged regarding their estates. The wills of both celebrities have been filed in court, but they disclose little more than the names of personal representatives and the fact that both men utilized trusts to hold their assets. Because the news media have been unable to report details about their wealth and who stands to inherit their assets, the privacy they've maintained can be considered an estate planning success story. It's a stark contrast to the situation of the late Aretha Franklin, whose lack of estate planning has left her financial affairs and beneficiaries exposed to public scrutiny.

There's not much mystery surrounding the recent deaths of rapper Mac Miller and actor Burt Reynolds. Miller, 26, died of a suspected drug overdose. Reynolds, 82, succumbed to a heart attack.

Given their fame and the news media's appetite to report as many intimate details about celebrities as possible, it's no surprise that soon after the wills of Miller and Reynolds were filed in court and became public documents, the headlines trumpeted the latest developments.

“Mac Miller left a will behind, but who will his estate go to?” says the banner atop USA Today's story about the filing of Miller's testamentary statement, teasing the reader with the prospect of a looming mystery.

People.com heralded its own devoid-of-details scoop: “Burt Reynolds left his only son out of his will and created a trust for him instead,” the headline reads, hinting at something nefarious. The article then enlightens us that the actor's assets “appear to be in the trust.” Put another way, none of Reynolds' assets “appeared” or were listed in his publicly accessible probate file. The reporter proceeds to speculate the purpose of the trust may be “designed to get around estate taxes.”

In the article about Miller, USA Today reveals his will specifies the name of the executor of his estate and that Miller had established a trust to hold his assets. The article concedes “it is unclear who is labeled as a trustee. It is also unclear how much Miller's estate is worth.” We do learn from Miller's will is that he named a personal representative to manage his estate. Beyond that, the report doesn't provide much clarity about Miller's financial affairs and who stands to get what and when.

Reynolds' will is just as unhelpful to media curiosity. The document is scant on juicy details, but we do learn the “Smokey and the Bandit” star appointed his niece as personal representative for his estate. It also shows that Reynolds followed standard procedure by stating his intentional omission of his son, Quentin, in the will because “I have provided for him during my lifetime in my Declaration of Trust.” The will identifies Quentin as a trust beneficiary, and it's common practice to state that fact in the will so there are no misunderstandings about his status as an heir that could lead to a legal dispute.

Did Reynolds create a trust to avoid estate taxes? Maybe so. But it's just as likely Reynolds wanted to avoid reporters sharing private details about his estate with the rest of the world. Similarly, the report on Miller suggests the popular rapper didn't provide clarity in his will. Indeed, the document doesn't state the value of his estate or include names of the successor trustee appointed to manage his trust.

What does seem quite clear, however, is that both celebrities sought to keep details of their finances and beneficiaries discreet and out of the gossip columns. Even famous entertainers have the right to privacy regarding their financial assets and the identities of the people and organizations who stand to benefit from their wealth and generosity.

Clearly, Miller and Reynolds followed the advice of their lawyers, who know that information in a will about assets left to heirs is a matter of public record. Trusts, however, are not considered part of the probate estate, and their provisions are shielded from public disclosure.

For both celebrities, it seems their estate plans are less of a mystery and more of a mission accomplished. They have in common a successful quest to keep the public guessing. From an estate planning standpoint, their efforts to maintain privacy have prevailed over prying eyes.

For Aretha Franklin, privacy not respected

For fellow celebrity Aretha Franklin, who died Aug. 16, 2018, privacy was a paramount concern, but her lack of estate planning has backfired.

Franklin was well-known for keeping her personal affairs under wraps during her lifetime. According to media reports, the Queen of Soul kept her pancreatic cancer secret for a decade and never discussed her illness in public. Her biographer told People.com that Franklin was “not atypical in her privacy, she's just extreme.”

Nonetheless, Franklin's attorney told reporters his client rebuffed attempts for her to draft a will and create a trust to shield her assets from probate. Instead, Franklin died intestate (without a will), and the distribution of her estate worth an estimated $80 million and her heirs are being determined based on a generic hierarchy of succession established by state law. Meanwhile, details of her estate and the probate proceedings are forever part of the public record and under a permanent spotlight.

Conclusion

Anyone who values privacy, from regular Joes to movie stars and recording artists, can take action to cloak the details of their estates and maintain the privacy of their beneficiaries. By utilizing estate planning tools, such as revocable living trusts, during your lifetime, you can keep your affairs out of the limelight whether it glares from the national media, nosy neighbors or even greedy predators.

There are numerous options and scenarios to consider when developing an estate plan that protects your legacy and achieves your objectives, and important decisions should be made with the advice of qualified lawyers and financial experts. Membership with Legacy Assurance Plan provides members with valuable resources and guidance to develop comprehensive estate plans that take life's contingencies into consideration and leave a positive impact for generations to come. Legacy Assurance Plan members also receive peace of mind that a team of trusted, experienced professionals will assist them in developing legal, financial and tax strategies that will meet their needs today and for years to come through periodic reviews.

Friday, September 7, 2018

Pall over the family: Dysfunction can lead to guardianships and deep regrets

Pall over the family: Dysfunction can lead to guardianships and deep regrets

by Tom Alberts Sep, 7 2018

Summary: Experts say many of the horror stories associated with court-appointed guardians are the result of family dysfunction and poor estate planning. Sibling rivalries, family disputes and misunderstandings coupled with a sometimes-inept judicial system can lead to abuse of elderly family members at the hands of unscrupulous professional caregivers.

The purpose of guardianship – enabling a person to care for the personal and property interests of another person who is unable to – may be a noble one.

The reality of guardianship, however, remains a nightmare for an alarming number of abused senior citizens and their frustrated loved ones, and it’s a problem that often originates from family squabbles, experts say.

“Family dysfunction and sibling rivalry are the primary reasons the matriarch or patriarch of a family is typically guardianized and ultimately starved, drugged or isolated to death unless they are restored to capacity,” says Dr. Sam Sugar, founder of Americans against Abusive Probate Guardianship, based in Hollywood, Florida.

Sugar is a national crusader against the injustices of guardianship. His website documents dozens of horror stories of guardianships gone awry. His latest book, “Guardianships and the Elderly: The Perfect Crime,” was written as a “survival guide” for senior citizens and their families.

Guardians are court-appointed surrogate decision-makers for adults who have been adjudicated as incapacitated and unable to manage personal, medical or financial affairs because of mental or physical disabilities. Judges also appoint guardians for minors when the parents die, become incapacitated and in other situations. Those under the care of guardians are referred to as “wards.”

Sugar decries a judicial system that he says “strips its citizens of their constitutional rights, voids their existing legal documents, gives others the right to spend their money and sell their assets, isolates them and has the ability to limit the time they can spend with their loved ones.”

LOCKED UP ‘LIKE AN ANIMAL’

The feuding children of Daniel Gross did him no favors. It was the summer of 2005 when Gross, a New York man in his mid 80s, decided to visit his daughter, Dee King, living in nearby Connecticut, but he had no idea how far out of the way his journey would take him.

Gross became ill during his visit and was hospitalized. “As his health deteriorated and Dee and her sister bickered, the hospital and family turned to the probate court. Big mistake,” writes Hartford Courant columnist Rick Green.

A probate judge appointed a lawyer to represent Gross. Problem is, the lawyer argued against Gross’ wishes – to return home to New York – and requested a guardian be appointed to oversee the elderly man’s affairs, writes Green, who used his journalistic pulpit to seek justice for Gross.

Instead of heading back to the Empire State, Gross was involuntarily placed in a Connecticut nursing home where he languished for 10 months. In the meantime, his Long Island home was put on the market because of mounting legal bills and guardianship fees.

His predicament has been blamed, in part, on his squabbling daughters’ decision to let a probate judge – not trusted family members – determine his fate. As the ordeal unfolded, King came to realize the agony endured by her father.

“He wants to stay in New York,” King told the Courant columnist. “My father had a life. He walked. He talked. Then they take him and lock him up like an animal.”

Two volunteer lawyers took up Gross’ cause and appealed his case to a superior court judge. “A terrible miscarriage of justice has happened here,” said the judge, who terminated the court-appointed guardianship and granted Gross his freedom.

WHERE’S GRANDMA?

In Florida, Jesse Locke is outraged a professional guardian was appointed to take control of a neighbor – his 84-year-old grandmother, Eloise.

After all, close relatives lived nearby and were willing to help out.

But a glitch in the system cost grandma her freedom, according to the family’s attorney. Family members say they were barred from seeing Eloise for 17 days after she was removed from her house under the Baker Act, a state law that allows for the involuntary institutionalization and examination of an individual.

Her removal, promoted by a petition to the court filed by a professional guardian, was preceded by visit from a sheriff’s deputy. The removal took place even though the deputy reported that the home was livable, stocked with food, and there was no reason to remove Eloise.

The family attorney says one of Elosie’s grandsons, who lives next door, should have been considered among the next of kin and notified when the petition for guardianship was filed. Instead, two of her surviving sons, who both live in other states, were notified and did not object to the petition. Her doting grandson, who does object to the appointment of a professional guardian, was not notified.

“Had notice been done properly, he would have been aware of the proceeding,” said family lawyer Gerald Hemness. “He could have appeared. He could have pointed out that he wanted to help his grandmother.”

Instead, the petition document had two important boxes that were checked. The first – a result of poor estate planning – states that no documents designating a guardian exist. The second – a result of family dysfunction and poor communication – says that relatives of the alleged incapacitated person did not object to a professional guardian.

“We were all overlooked in this process,” Locke told a Tampa television crew as footage shows him with his healthy, cheerful grandmother. “It was a nightmare,” a spunky Eloise told a TV reporter, adding “I think it’s a bunch of bull.”

DID SISTER’S ACTIONS LEAD TO DAD’S DEMISE?

In North Carolina, Ginny Johnson says appointed guardians “in my opinion murdered” her dad, who had been a vibrant and active World War II veteran. Before being “warehoused” in 2011 by the state, the healthy 95-year-old had spent his time hitting golf balls, exercising, having lunch with friends and enjoying his dog. She said her father was dead a year later after being malnourished, prevented from exercising, overly sedated and undergoing physical abuse at the hands of a professional guardian.

Johnson says she had been named as her dad’s power of attorney and health care proxy, but an estranged sister filed for guardianship. As a result, a judge appointed neither daughter and opted instead for a professional guardian, and that’s when the trouble allegedly began.

According to the AAPG, Johnson is among those who regret involving a local court “to stop the negative dynamics of their dysfunctional families.”

A LANDMARK CASE IN TEXAS

In May 2018, a Texas district court judge ruled that a probate judge could be sued by the daughter of an elderly woman who suffered broken bones and malnutrition before dying as a ward of the state of Texas.

The district judge found that the probate judge failed to exercise “reasonable diligence” to determine whether the woman’s guardians were performing their duties. The probate judge ignored a request for emergency relief just two days before the woman died, “turning a blind eye to the preventable decline” of the aging mother, according to the AAAPG.

The ruling was considered a landmark decision and came a month after a representative of Texas Judicial Council, the policy-making body for the state judiciary, told Congress that nearly half of adult guardianship cases in the state were out of compliance with reporting requirements.

WHO SHOULD HANDLE YOUR AFFAIRS?

Those under guardianship no longer have final say on where they live or their medical care. Guardianship strips away rights to marry, enter into contracts and file and defend lawsuits. Gone are rights to control one’s property, get a job, vote, travel – even to have a driver’s license.

In typical cases, courts make findings of incompetence and appoint guardians over senior citizens in cognitive decline and disabledadults. Experts say that having a power of attorney, self-appointed guardian and a living will in place can prevent the appointment of a potentially abusive situation.

Careful estate planning is an important preventive measure. One key safeguard is a living will, or advance directive, that assigns ofpower-of-attorney authority over one’s personal, financial and health decisions to a trusted family member, friend or other representative. Those hand-picked guardians can be designated – without court intervention – to oversee the affairs of a peoplea court declares to be incapacitated and unable to make decisions for themselves.

Establishing a living trust that sets up a procedure for a private determination of incapacity – and not a public determination by a judge — is another option to consider, suggests Minnesota-based estate planning attorney William D. Sommerness in an article for avvo.com.

In a living trust, people can list individuals they entrust to make a private determination of incapacity. Oftentimes, a person’s doctor,spouse and one or more children serve on a “panel” that can make decisions about incapacity.

“For folks who feel they would rather have family and professional medical people who know them well make this big decision, rather than a judge they do not know and a court-appointed doctor who they don’t know, the option of planning with a living trust is an option they really want,” Sommerness says.

There are numerous issues to keep in mind when creating your comprehensive estate plan. One helpful option to consider to avoid an unwanted guardianship is a Legacy Assurance Plan membership. Members are educated on a variety of estate planning matters and receive access to numerous resources they can use to achieve legacy-protecting objectives. Membership with Legacy Assurance Plan can help families in making important choices that will improve lives for the next generation and beyond.