Showing posts with label Probate. Show all posts

Monday, October 15, 2018

What started as a dog walk ended with a lesson in life planning – and four stitches

What started as a dog walk ended with a lesson in life planning – and four stitches

by Tom Alberts Oct 15, 2018

Summary: There’s nothing like a real-life crisis to open one’s eyes to the need for proper planning. It’s difficult to predict what fate awaits us, so there’s no better time than now or the near future to get the proper paperwork in order. In the author’s case, it was a close call from a dog attack that provided instant motivation to utilize legal documents to protect his interests and ensure plans are in place for major life events. Among those documents are a last will and testament, a revocable living trust, powers of attorney, an advance health care directive, a HIPAA release and beneficiary designations.

In my new job, I haven’t been practicing what I’m preaching.

I’ve switched gears after spending three decades in newsrooms and now work in the estate planning business, extolling the virtues of preparedness as I write articles warning about the gravity of guardianship, the ills of intestacy and the perils of probate.

My new mission is to help spread the word about the importance of planning for the unexpected events in life and the vital need to create a comprehensive estate plan to protect your loved ones and your legacy.

But like two-thirds of Americans, I’ve put planning for life events and estate matters on the back burner. I haven’t executed a last will and testament, although I’ve spent a lot of time encouraging those of sound mind.

A revocable living trust? Haven’t been there or done that, despite the articles I’ve written imploring you to create and fund one.

I haven’t signed powers of attorney enabling a reliable person to handle my finances and make decisions about my health care if necessary – but I’ve pounded the keyboard to alert others about such oversights.

If I wind up in the hospital and lack my wits, I’ll be lacking a signed Health Insurance Portability and Accountability Act release to keep my loved ones in the loop with my doctors and nurses. I’ve been typing feverishly, nagging about the necessity of HIPAA releases, but I haven’t bothered to sign one.

While I sing the praises of advance health care directives (living wills), you will not find one in my binder of blank pages. Beneficiary designations for bank accounts and such? Don’t bet on it.

So what happened?

My lack of preparedness came to mind in a hurry recently while out for a walk with my dog, Scotty, a sprightly Scottish terrier mix with a penchant for hunting lizards, coaxing belly rubs and chomping on ice cubes. The after-dinner jaunt is part of a routine I’ve enjoyed with my four-legged friend the past decade or so. But this time, unlike thousands before, was different. Little did I know I was about to experience one of those unexpected events in life that could alter the future in a big way.

A few minutes into our stroll, we caught the attention of an aggressive dog being walked by a neighbor. The angry beast flashed its fangs, twisted its head and wriggled out of its collar as its owner screamed at me to “pick him up!” In the blink of an eye, the dog sprinted toward Scotty, clamping its powerful jaws onto my helpless little buddy’s neck. I wailed in horror as I put my hands in the offending dog’s mouth, fruitlessly attempting to loosen its tight-as-a-vice grip.

I instinctively punched the top of the dog’s head with my fist. It’s a miracle he released Scotty and turned his vengeance on me, treating my fingers like they were wayward sausages. A nearby neighbor swooped in and carried Scotty out of harm’s way. I’m blessed Scotty’s injuries were limited to a single bite wound to the neck, and his prognosis is good. Scotty’s collar absorbed the brunt of the bite and acted as a protective shield. I escaped with four stitches in one finger, a nice puncture wound in another and assorted dings and dents.

My experience doesn’t compare to much worse events that make headlines every day. Luck was with us, and the wounds will heal quickly. Scotty and I escaped a more serious fate, but there was no avoiding the wake-up call from our terrifying ordeal.

The day after the trauma and drama subsided, it was time for some serious reflection on following some of the planning suggestions I make my living espousing. I thought about how life is fragile and that in the time it takes a dog to snap its jaws, any number of other calamities could strike.

When do we need a plan?

Few people wake up in the morning and, over their cup of coffee, decide to create a comprehensive estate plan. Eventually, though, for some reason you may decide to prepare for life’s contingencies and endeavor to leave behind a legacy to benefit your loved ones when you’re no longer around. Some unforeseen event may serve as a trigger. It could be your own near miss. The demise of someone else. A medical condition. Or, in my situation, a dog attack.

There’s a natural reluctance to ponder one’s incapacity or death and imagine disasters that inspire you to get legal papers in order. Just ask two-thirds of Americans. A lack of urgency is normal, unless you’ve just received a doomsday diagnosis from your doctor. Maybe there are family dynamics that prevent you from broaching this sensitive subject with loved ones. Perhaps it’s hesitation about anticipated expenses for legal and planning services.

All those roadblocks are understandable, but they put you on a detour from a path of certainty. I’m 53, and I know plenty of people my age who are among the ranks of the ill-prepared for those golden years, and grizzly bears, around the corner.

I like the idea of having someone I personally choose to act as my power of attorney to manage my medical treatment and finances if I can’t. I’ll take comfort knowing that a will and trust are structured to minimize the exposure of my assets to probate administration – and there’s a provision for Scotty’s care if I’m not around. I need to be confident my family members will get details from my doctors with no hassles with a HIPAA release. I want to make my own decisions about end-of-life care with my living will, sparing my family of this potential burden.

It took a dog bit out of the blue for me to get my planning priorities straight. The hours I spent at the vet and in the emergency room recounting a near tragedy helped me realize that now is the best time to act. What if the dog spared my fingers and nailed me in the neck instead? I simply would not have been prepared.

Some time and effort are required to create the right planning documents, and there’s an expense involved. But it’s a prudent investment to maintain control of your future affairs during life and beyond.

Have you considered Legacy Assurance Plan?

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.

Tom Alberts is staff journalist for Legacy Assurance Plan. A graduate of Indiana University with a double major in journalism and English, he previously was a reporter and editor for newspapers in Indiana, Missouri, Texas, Pennsylvania and Florida. Alberts resides in Bradenton, Florida, with his dog, Scotty. You can contact him at talberts@ufresources.com and follow him on Twitter at @alberts_tom.

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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University Park, Florida 34201
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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.

Monday, March 12, 2018

How the Procedural Rules of Probate Can Get in the Way of Your Goals

Summary: When you decide to create an estate plan, you obviously want a plan that will allow you to express your wishes and have those wishes carried out after you die. In some situations, though, the law may stop you from doing so. The legal rules regarding probate administration may bar you from naming the person you want to serve as the administrator of your estate. Using a living trust is one way you may be able to avoid this problem, as the legal rules create fewer prohibitions against serving as the successor trustee of a living trust as compared the administrator of probate estate. This type of plan may more fully allow you to achieve the goals you have for your estate.

Imagine, if you will, this situation: You are preparing to create your estate plan. You are widowed and have one child, a son. Your son, a responsible member of his community with a family and a good job, is the person you desire, not only to be the beneficiary of your wealth, but also the administrator of your estate. You have no one else who is as close to you whom you’d want to handle the job.

However, as you prepare to put your plans onto paper, you discover a stunning problem. You see, back when he was in college 25 years ago, your son, on a dare, shoplifted some alcohol from a liquor store. Because the bottles he grabbed happened to be worth a grand total of $205, he was convicted of a felony theft crime. Your estate planning attorney, much to your surprise and dismay, tells you that, in your state of residence, the law forbids people who have felonies on their records from serving as administrators of probate estates. As you sit in the lawyer’s office flabbergasted, you can only think… “Now what am I going to do?”

Sound far-fetched? It’s not. Some states have a flat prohibition that forbids anyone with any type of felony conviction on their record (no matter what type or how long ago) from serving as an administrator of any probate estate in that state. (And yes, some states allow for felony convictions for stealing as little as $200.)

This story highlights the fact that there are many procedural hurdles and potential pitfalls involved in going through the probate process. Probate administration is a creation of statutory law and court case decisions, so when an estate goes through probate, everything must be done in such a way that it passes through all the hoops that have been erected by the statutes and previous court ruling about probate.

There are ways to avoid these potential procedural pitfalls. One way, for example, is to create a plan that distributes most or all of your wealth through a revocable living trust. Because a living trust is not something that was created by probate laws, dividing and distributing your wealth using a living trust is a process that does not have to satisfy all the procedural hoops and hurdles of probate law. There are certain requirements, such as the way that you go about executing (signing) a trust, that the law says you have to meet, but there are many others that do apply to wills and probate that don’t apply to trusts.

Let’s return the example above. While you cannot name your son due to the law’s barrier against convicted felons serving as estate administrators, you probably can set up an estate plan centered around a revocable living trust and then name your son as the successor trustee of that trust, regardless of that shoplifting conviction from a quarter-century ago. The law generally establishes far fewer barriers preventing people serving as successor trustees. As compared to the laws governing estate administrators, you can generally name almost anyone you want to be your successor trustee.

This article written and published by:

Legacy Assurance Plan

8039 Cooper Creek Blvd

University Park, Florida 34201

844.306.5272 (Phone)

info@legacyassuranceplan.com (email)

@assuranceplan

#legacyassuranceplan

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Thursday, August 3, 2017

Your Living Trust | Protecting You Against More Than Just the Costs and Delays of Probate

Summary: Your living trust, if it is properly created and funded, can do many things for your family after you pass away. Your trust can help you avoid probate’s potentially high costs, long delays and public nature. Additionally, though, a well-crafted living trust may also provide a vital safeguard against possibly harmful court actions like unwanted conservatorship, guardianship or elder abuse actions launched by people who goals do not mesh with your own.

If you read or hear a discussion about the benefits of a revocable living trust, you may hear most of this discussion focusing on how probate can be expensive, can be time consuming and can create public exposure of your private matters, and how a proper living trust can help your family avoid all that. This is all definitely true and, depending on your circumstances, can be a huge factor in favor of obtaining an estate plan with a living trust. These discussions do not, however, tell the whole story. Your trust can offer other vital benefits, too. One of the biggest of these additional benefits relates to unwanted elder law actions. A lot of times these actions involve an unwanted conservatorship or guardianship. In one recent real-life case, though, the unwanted court action was a charge of elder abuse.

The senior in the case was 88-year-old Eileen. Eileen had taken action and obtained an estate plan that included a living trust. In fact, Eileen and her late husband set up various trusts. Over the years, Eileen, the husband and three of the couple’s four children served as trustees.

Then, in 2013, Eileen’s fourth child, Belinda, filed an elder abuse lawsuit against her three siblings. She claimed in her lawsuit that the siblings’ actions in managing the trusts were so badly out-of-line as to constitute financial abuse of a senior. The siblings asked the judge to dismiss the case.

Eileen did not sick back passively. She hired her own lawyer who joined the three siblings’ argument in favor dismissal. The siblings and Eileen all argued that the law did not give Belinda the legal right to pursue an elder abuse action on behalf of her mother. Eileen and the three children won the day in court, as the judge dismissed the case and the appeals court upheld that ruling.

Part of the reason that Belinda lost was because her mother had an estate plan in place that expressed her interests. Eileen’s trust was clear that Belinda was neither a trustee nor a beneficiary under the trust. These were some of the key facts in finding that Belinda lacked what the law calls “standing,” or a right to take legal action. The appeals court, in upholding the ruling against Belinda, stated that Eileen named Belinda as her agent under a valid power of attorney or named her as a trustee, then the motion seeking dismissal would have failed and Belinda could have gone forward with her suit. However, Belinda clearly was neither with Eileen’s plan, so Belinda’s suit failed.

Eileen had planned and her plan had made her intentions known. By making clear whom she wanted to be her beneficiaries and whom she wanted to act on her behalf (and whom she did not,) Eileen’s plan helped her defeat a legal action seeking to take an action on her behalf of which she did not approve. This is a clear example of an estate plan at work and how a living trust does more than just avoid probate administration after your death.

This article written and published by:

Legacy Assurance Plan

8039 Cooper Creek Blvd

University Park, Florida 34201

844.306.5272 (Phone)

info@legacyassuranceplan.com (email)

@assuranceplan

#legacyassuranceplan

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Thursday, May 11, 2017

Common Law Marriage and Your Estate Plan

Summary: Failing to create an estate plan can be a risky proposition. Leaving your legacy to your state's intestacy laws creates a possibility that your wealth will be distributed in a way that's different than you would have wanted. Leaving behind no plan also opens the door to risks like estate litigation from people claiming to be your legal heirs. With a complete plan that includes a will or a will and living trust, you can make certain that your specific and personal objectives are made clear in valid legal documents.

In February 2015, an Iowa grandmother named Christine passed away at a hospital in Des Moines. According to her obituary, Christine was survived by two children, two grandchildren, one great-grandchild and "her husband of 23 years, Mike." Like a lot of people (too many, to be truthful,) Christine died with no estate plan in place. That meant that Christine's estate would go through Iowa's probate system and be distributed according to Iowa's intestacy laws.

Christine's daughter asked the probate court to name her as the administrator of her mother's estate. In her court papers, the daughter asserted that she and her brother were Christine's only heirs at law. Sometime after that, Mike entered the case. He asked the court to remove the daughter. The daughter fought against this removal, arguing that Mike had no legal standing to ask the court to do anything in Christine's estate. You see, Christine and Mike never obtained a marriage license. Mike's claim was that he and Christine were common-law spouses, which the daughter argued against.

Several states have passed laws eliminating the recognition of common-law marriage within their borders, but Iowa isn't one of them. In Iowa, a common-law marriage occurs when two people agree that they are married, cohabitate continuously as partners, and act like a married couple in public. If Mike met all of the legal standards for a common-law spouse in Iowa, then he potentially was Christine's legal husband and entitled a full spousal share under the intestacy laws. Following Iowa's intestacy rules, that would have meant Mike received one-half of Christine's assets and Christine's two kids split the other half.

The probate court ruled for the daughter, concluding that Mike had not proven that he qualified as Christine's common-law husband. Mike appealed but, during the appeal process, he surrendered the argument that he and Christine were common-law spouses. Without possibly qualifying as Christine's common-law spouse, Mike was what's called a "legal stranger" to Christine and not entitled to request the daughter's removal and not entitled to receive anything from Christine's estate.

This protracted litigation points several different ways that intestacy can be problematic and reasons why you need an estate plan. First, Christine's lack of a plan either frustrated her goals or else needlessly cost her family time, money and stress. Perhaps Mike was a trusted and beloved partner to Christine for many, many years. If that were true, it seems possible that Christine might want to remember him in her estate. By creating neither a will or trust, Christine ended up leaving Mike nothing. On the other hand, perhaps Christine objectives were for all of her assets to go to her two children. If she had put an estate plan in place, it is possible that her family could have avoided the prolonged litigation that ensued over her estate.

A second reason is specific to states, like Iowa, that recognize common-law marriage. If you have a committed partner whom you've never married, and live in a state that recognizes common-law marriages, it is important to realize that your partner might possibly qualify as your common-law spouse. If that's true, then your partner may have certain spousal rights regarding your estate. An experienced estate planning attorney can help you understand what your rights and obligations are, and develop an estate plan that meshes these obligations with your estate planning goals.

This article written and published by:

Legacy Assurance Plan

8039 Cooper Creek Blvd

University Park, Florida 34201

844.306.5272 (Phone)

info@legacyassuranceplan.com (email)

@assuranceplan

#legacyassuranceplan