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Thursday, July 16, 2020

Help! I’ve Been Named as a Guardian. What Do I Do?


A guardian is an individual who cares for someone, often a minor child, who needs special protection. Parents can nominate a guardian in their will, but typically a court must confirm and officially appoint the guardian after both parents have passed away. Sometimes the need for a guardian arises when the parents are still alive. For example, if the parents become very ill or are unable to care for the child for some other reason, a court can appoint a person nominated by the parents. If a guardian has not been nominated, the court will appoint a person it believes will act in the child’s best interests, often a family member or friend who is familiar with the child.
Read more . . .


Wednesday, July 15, 2020

Sandwich Generation Month: Considerations When Caring for Both Children and Parents


July is National Sandwich Generation Month, a time to honor those who are caring for both their children and their aging parents. This topic is particularly germane at present, as many parents are not only parenting their children but have also spent the last few months homeschooling them. Older children who have lost their jobs or were unable to return to college after spring break due to the coronavirus may now be living at home. At the same time, those parents may already be acting as a caregiver for one or more of their parents who are no longer able to look after themselves, or they may have become more involved in caring for aging parents who are at a higher risk for contracting COVID-19.

Self-Care Is Crucial

Those who are also working—either remotely or outside of the home—have additional responsibilities beyond caregiving.
Read more . . .


Tuesday, April 14, 2020

What Happens When Your Disabled Child Turns 18 and What You Need to Do Beforehand

When your child is under the age of 18, you, as their parent, can make most, if not all decisions, on their behalf. However, when your child turns 18, the law views them as an adult, and you no longer have the ability to control what and how decisions are made, or even receive relevant information about those decisions. For most parents, this is a rite of passage. They just have to sit back and watch their children leave the nest and begin their adult lives. But what if you have a child who is disabled? That child may need help making financial or medical decisions: What will happen to them? How can you step back in and continue to care for them if needed?
Read more . . .


Sunday, October 16, 2016

Preparing Your Family for an Emergency During School Hours

Every family should establish a clear plan to handle an emergency that occurs during school hours. Unfortunately, many parents mistakenly believe that filling out the school’s emergency card is sufficient. Sadly, this practice falls far short of what is truly necessary to protect your children in the event something tragic happens to you during the school day.

Even with a fully-completed school emergency card, your children could still spend time “in the system.” The emergency card only gives permission for certain named individuals to pick up your children if they are sick, but does not authorize them to take short-term custody if one or both parents are killed or become incapacitated. Without having alternate arrangements in place, children in this situation would likely end up spending at least some time with social services.

Parents should create an emergency plan, to avoid confusion and ensure their children are in the right hands if tragedy strikes. With just a few simple steps, parents can rest easy knowing their children will be cared for in the manner they choose.

Name Temporary Guardians
Parents should name short-term guardians who have legal permission to care for their children until a parent or other long-term guardian is available to take over. This individual should be someone who lives nearby and can aid and comfort your child in an emergency. You can establish this temporary guardianship arrangement by completing a temporary guardianship agreement or authorization, preferably, with the assistance of a qualified attorney.

Make Sure the Temporary Guardians are Also Named on the School Emergency Card
In addition to listing neighbors or friends who are authorized to pick up your children from school, .it is also vital that you list the full contact information for your authorized temporary guardians. In the event of a true emergency, this guardian can step in immediately to care for your children. Otherwise, your kids may wind up in the custody of social services until a parent or other named legal guardian can be located.

Ensure the Babysitter Knows the Plan if You Don’t Return Home
Make sure you give your babysitters detailed instructions regarding who to call or what to do in the event you are unexpectedly absent. Without this information, many babysitters will panic and contact the police. Involving law enforcement will also involve social services who may step in and take temporary custody of your children until a long-term guardian or parent arrives.

These three simple steps will make all the difference for your children and their caregivers in the event the unthinkable happens. In times of tragedy, the last thing you want is for your little ones to end up in the system, rather than the loving arms of a trusted friend or relative.
 


Sunday, December 13, 2015

Pooled Income Trusts and Public Assistance Benefits

A Pooled Income Trust is a special kind of trust that is established by a non-profit organization. This trust allows individuals of any age (typically over 65) to become financially eligible for public assistance benefits (such as Medicaid home care and Supplemental Security Income), while preserving their monthly income in trust for living expenses and supplemental needs. All income received by the beneficiary must be deposited into the Pooled Income Trust.

In order to be eligible to deposit your income into a Pooled Income Trust, you must be disabled as defined by law. For purposes of the Trust, "disabled" typically includes age-related infirmities. The Trust may only be established by a parent, a grandparent, a legal guardian, the individual beneficiary (you), or by a court order. 

Typical individuals who use a Pool Income Trust are: (1) elderly persons living at home who would like to protect their income while accessing Medicaid home care; (2) recipients of public benefit programs such as Supplemental Security Income (SSI) and Medicaid; (3) persons living in an Assisted Living Community under a Medicaid program who would like to protect their income while receiving Medicaid coverage.

Medicaid recipients who deposit their income into a Pooled Income Trust will not be subject to the rules that normally apply to "excess income," meaning that the Trust income will not be considered as available income to be spent down each month. Supplemental payments for the benefit of the Medicaid recipient include: living expenses, including food and clothing; homeowner expenses including real estate taxes, utilities and insurance, rental expenses, supplemental home care services, geriatric care services, entertainment and travel expenses, medical procedures not provided through government assistance, attorney and guardian fees, and any other expense not provided by government assistance programs.


Monday, September 21, 2015

Self-Settled versus Third-Party Special Needs Trusts

Special needs trusts allow individuals with disabilities to qualify for need-based government assistance while maintaining access to additional assets which can be used to pay for expenses not covered by such government benefits. If the trust is set up correctly, the beneficiary will not risk losing eligibility for government benefits such as Medicaid or Supplemental Security Income (SSI) because of income or asset levels which exceed their eligibility limits.

Special needs trusts generally fall within one of two categories: self-settled or third-party trusts. The difference is based on whose assets were used to fund the trust. A self-settled trust is one that is funded with the disabled person’s own assets, such as an inheritance, a personal injury settlement or accumulated wealth. If the disabled beneficiary ever had the legal right to use the money without restriction, the trust is most likely self-settled.

On the other hand, a third-party trust is established by and funded with assets belonging to someone other than the beneficiary.

Ideally, an inheritance for the benefit of a disabled individual should be left through third-party special needs trust. Otherwise, if the inheritance is left outright to the disabled beneficiary, a trust can often be set up by a court at the request of a conservator or other family member to hold the assets and provide for the beneficiary without affecting his or her eligibility for government benefits.

The treatment and effect of a particular trust will differ according to which category the trust falls under.

A self-settled trust:

  • Must include a provision that, upon the beneficiary’s death, the state Medicaid agency will be reimbursed for the cost of benefits received by the beneficiary.
  • May significantly limit the kinds of payments the trustee can make, which can vary according to state law.
  •  May require an annual accounting of trust expenditures to the state Medicaid agency.
  • May cause the beneficiary to be deemed to have access to trust income or assets, if rules are not followed exactly, thereby jeopardizing the beneficiary’s eligibility for SSI or Medicaid benefits.
  • Will be taxed as if its assets still belonged to the beneficiary.
  • May not be available as an option for disabled individuals over the age of 65.


A third-party settled special needs trust:

  • Can pay for shelter and food for the beneficiary, although these expenditures may reduce the beneficiary’s eligibility for SSI payments.
  • Can be distributed to charities or other family members upon the disabled beneficiary’s death.
  • Can be terminated if the beneficiary’s condition improves and he or she no longer requires the assistance of SSI or Medicaid, and the remaining balance will be distributed to the beneficiary.
     

Monday, May 25, 2015

Important Steps to Plan for a Special Needs Child

#1 Establish a Comprehensive Plan
Most estate planning attorneys will say that no person should use a “do-it-yourself” will kit to establish their estate plan.  If you have a child with special needs, it is extremely important to seek competent legal counsel from an estate planning lawyer with special needs planning experience before and during the process of writing your will.

In your estate plan, make sure that any bequests to your child are left to his or her trust (see #2, below) instead of to the child directly.  Your will should also name the person or persons you want to serve as guardian of your child (see #3, below).

Once your estate plan is complete you should give copies to all the guardians and executors named in the will.

#2 Establish a Special Needs Trust
A special needs trust is the most important legal document you will prepare for your child.  In order to preserve your child’s eligibility for federal financial benefits like Supplemental Security Income (SSI) and Medicaid, all financial assets for your child should be placed into this trust instead of being held in your child’s name.  This is because federal benefit programs restrict the amount of income and assets the recipient may have.  If your child has too many financial assets, he or she could lose his eligibility for important federal assistance programs.

You can use this trust as a depository for any money you save for your child’s future, money others give as a gift, funds awarded in a legal settlement or successful lawsuit, and other financial assets.

Should you create a special needs trust if your child doesn’t currently have any financial assets?  Yes.  Once you create the special needs trust, then the trust can immediately become the named beneficiary of any life insurance policies or planned bequests, either yours or family members’.

#3 Appoint a guardian and complete necessary guardianship papers

Like any parent, you worry about who will care for your child if you were to die before the child becomes an adult.  Unlike other parents, you worry about who will care for your child and provide guidance even after he or she is an adult.

A legal guardian is the person who will care for your child after your death and until the child turns 18.  If your child is unable to live independently, then you can either make arrangements for adult care or discuss your preferences with the appointed guardian.

As you consider choices of a guardian for your special needs child, consider how much time is required to raise a child with special needs.  Who do you know who can respond to the challenge?  Who do you know who has already formed a bond with your child?

After you make a choice, ask the individual if he or she will accept the responsibility of serving as your child’s named, legal guardian.  It is never wise to keep this decision a secret.  Also, discuss with your selected guardian how he or she will probably still have responsibilities toward your child even after his or her 18th birthday.

#4 Apply for an adult guardianship

Even if your child is still a minor, you can start planning now for when he or she reaches the age of majority.  When children turn 18, the law considers them adults and able to make their own financial and medical decisions.  If your special needs child will be incapable of managing his or her own health and finances, consider a legal guardianship.

#5 Prioritize your savings account
Parents of special needs children quickly learn that their children need many resources and equipment that insurance and school systems do not cover.  The more financial assistance you can give your child, the better.  Start saving as early as possible for your child’s lifetime needs – just remember to not open the savings account in your child’s name

Savings can help pay for therapies, equipment, an attorney to advocate for your child in the school system, or a special education expert who can help you make sure your child is getting access to all the programs he or she qualifies for.

#6 Plan for your child’s adulthood

Early planning for your child’s adult years will help you bring the legal and financial picture into sharper focus.  Will your child continue to live with you?  If so, will he or she need in-home assistance?  How often?  Do adult day care programs for people with special needs exist in your community?  How are they rated?

Is your goal for your child to live independently?  If so, what support will he or she need?  Will your child live in a group home, an assisted living community, an apartment with on-site nursing care, or another type of situation?  The earlier you research available options in your community, the sooner you can add your child’s name to the waiting list for the living situation you both prefer.

#7 Write a letter of intent
A letter of intent is not a formal legal document.  It is more like a manual of instruction, containing your wishes for your child’s upbringing.  In the best case scenario, you would give this letter of intent to your child’s chosen guardian and to anyone else who will play a significant role in his or her life after your death. 

  • What is your child’s daily routine?  What kind of weekly and monthly routine does she have?
  • What does he find especially comforting?  What frightens her?  What are favorite foods, books and movies?  Be as detailed as you wish.
  • List all of your child’s health care and educational providers.
  • List all current medications, doses and schedules.
  • List all allergies.
  • Are there people you don’t want your child to spend time with? Be specific.
  • Are there people you want your child to spend time with? Who?
  • Are there activities you especially want your child to try, such as sports or arts and crafts?

Update this letter at least once a year.  Keep a copy wherever you keep copies of your will.  And be sure to give a copy to your child’s appointed guardian.

#8 Talk with family members
Either in person or in writing, explain the major decisions you have made to important family members.  It is especially important to explain to generous grandparents and other relatives why they must not leave gifts of money – or inheritances – directly to your child.  Give relatives the information about your child’s special needs trust and instruct them to leave any financial gifts to the trust.  Similarly, explain that family members should designate the trust – not the child – as the beneficiary of life insurance policies and so forth.

If you have made decisions you fear will be unpopular (such as naming a guardian), consider explaining your reasons directly to family members whom you fear will be unhappy.  You could also consider including the named guardian in these difficult conversations.

The process of planning for your special needs child’s future may seem long and arduous at times, but you will experience a great relief when the major pieces of the plan are in place.  Creating a plan for the future will allow you to relax and enjoy the present with your child and family.


Monday, April 20, 2015

Spendthrift Trusts

Unfortunately, not everyone in the world is responsible with money. Even those who are moneywise can run into bad luck in life which could cause them financial hardship. So when planning your estate, you should think twice about leaving a large sum of money to someone who can’t handle it. For those beneficiaries for whom you have concerns, a spendthrift trust may be an ideal solution.

If a person who is “bad with money”, or who is going through a rough time, gets a large inheritance, odds are that the inheritance will be gone in a matter of a few months or a year or two, with very little to show for it. A spendthrift trust is a trust that is designed to limit a beneficiary’s ability to waste the principal of a trust. The beneficiary of a spendthrift trust is a person who can’t handle money, or is addicted to drugs, alcohol, or another negative behavior. A spendthrift trust could even be used for someone in a destructive relationship.

In a spendthrift trust, a sum of money is set aside in a trust account. The beneficiary is never the trustee of a spendthrift trust. Instead, the trustee can be another family member, a family friend, or even a corporate trustee like a bank. The trustee will spend the money for the beneficiary’s needs or could make payments directly to the beneficiary, as the trust document allows. However, the beneficiary has no right to spend the principal of the trust. The beneficiary also doesn’t have the legal right to pledge the trust as security for a loan.

In some spendthrift trusts, the trustee could have the power to cut off benefits to a beneficiary who becomes self-destructive, such as with the use of drugs or alcohol. The money could then be accumulated for the beneficiary’s use later, or it could be paid to another beneficiary. Another option would be to give the trustee the option to only make payments on behalf of a beneficiary who has become self-destructive, but to withhold cash from that beneficiary.

Spendthrift trusts are a great tool to help potential beneficiaries who cannot handle money for various reasons. However, they aren’t perfect. They may be too strict in situations where the beneficiary may have a legitimate need for more money. If the spendthrift trust isn’t strict enough about what money is allowed to be spent on, that leaves a lot of control in the trustee’s hands, and he may find himself in the difficult position of standing between an erratic beneficiary and his or her money.

If you’re concerned about a particular beneficiary and his or her ability to manage money, be sure to consult with a qualified trust attorney to evaluate whether a spendthrift trust would be an effective tool for your estate plan.


Monday, December 8, 2014

When to Involve Adult Children in the Estate Planning Process

Individuals who are beginning the estate planning process may assume it's best to have their adult child(ren) join them in the initial meeting with an estate planning attorney, but this may cause more harm than good.

This issue comes up often in the estate planning and elder law field, and it's a matter of client confidentiality. The attorney must determine who their client is- the individual looking to draft an estate plan or their adult children- and they owe confidentiality to that particular client.

The client is the person whose interests are most at stake. In this case, it is the parent. The attorney must be certain that they understand your wishes, goals and objectives. Having your child in the meeting could cause a problem if your child is joining in on the conversation, which may make it difficult for the attorney to determine if the wishes are those of your child, or are really your wishes.

Especially when representing elderly clients, there may be concerns that the wishes and desires of a child may be in conflict with the best interests of the parent. For example, in a Medicaid and long-term care estate planning context, the attorney may explain various options and one of those may involve transferring, or gifting, assets to children. The child's interest (purely from a financial aspect) would be to receive this gift. However, that may not be what the parent wants, or feels comfortable with. The parent may be reluctant to express those concerns to the attorney if the child is sitting right next to the parent in the meeting.

Also, the attorney will need to make a determination concerning the client's competency. Attorneys are usually able to assess a client's ability to make decisions during the initial meeting. Having a child in the room may make it more difficult for the attorney to determine competency because the child may be "guiding" the parent and finishing the parents thoughts in an attempt to help. 

The American Bar Association has published a pamphlet on these issues titled "Why Am I Left in the Waiting Room?" that may be helpful for you and your child to read prior to meeting with an attorney. 


Wednesday, January 18, 2012

Caregiver Contracts: A Growing Planning Trend for Families

 

Caregiver Contracts: A Growing Planning Trend for Families

 

Many people are willing to voluntarily care for a parent or loved one without any promise of compensation. Even so, a growing number of people are entering into caregiver contracts (also called personal service or personal care agreements) with their family members. Having such a contract has many benefits. It rewards the family member doing the work. It can help alleviate tension between family members by making sure the work is fairly compensated. In addition, it can be a be a key part of Medicaid planning, helping to spend down savings so that the elder might more easily be able to qualify for Medicaid long-term care coverage, if necessary.

The following are some things to keep in mind when drafting a caregiver contract:

  • Meet with your attorney. It is important to get your attorney's help in drafting the contract, especially if qualifying for Medicaid is a goal.
  • Caregiver's duties. The contract should set out the caregiver's duties, which can be anything from driving to doctor's appointments and attending doctor's meetings to grocery shopping to help with paying bills. The length of the term of the contract is usually for the elder's lifetime, so it is important to cover all possibilities, even if they are not currently needed. The contract can continue even if the elder enters a nursing home, with the caregiver acting as the elder's advocate to ensure the best possible care.
  • Payment. Payment to the caregiver can either be made with a lump-sum payment or in weekly or monthly installments. For Medicaid purposes, it is very important that the pay not be excessive. Excessive pay could be viewed as a gift for Medicaid eligibility purposes. The pay should be similar to what other caregivers in the area are making, or less. To calculate a lump-sum payment, take the monthly rate and multiply it by the elder's life expectancy. (Not that some states, Georgia for example, do not recognize the ability to create a lump sum contract based upon life expectancy.)
  • Taxes. Keep in mind that there are tax consequences. The caregiver will have to pay taxes on the income he or she receives.
  • Other sources for payment. If the elder does not have enough money to pay his or her caregiver, there may be other sources of payment. A long-term care insurance policy may cover family caregivers, for example. Also, there may be state or federal government programs that compensate family caregivers. Check with your local Agency on Aging to get more information.

For articles on caregiver contracts, click here and here.


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Surprise! You Can’t Easily Disinherit Your Spouse in the U.S.
Stress Test Your Estate Plan
Sonny Bono’s Procrastination in Creating a Will Led to Years of Estate Battles
Skyrocketing Probate Fees – Another Reason to Avoid Probate Court
Revocable Trust vs. Irrevocable Trust: Which Is Best for You?
Prince’s Sad and Incredibly Expensive Mistake! (Are You Making It, Too?)
3 Powers to Consider Giving to a Trust Protector
Philip Seymour Hoffman’s Will: 3 Critical Mistakes
Parental Warning: If You Own Your Property this Way, You May Accidentally Disinherit Your Own Children
Over 70% of Elvis Presley’s Estate Paid in Taxes & Fees: How Can You Avoid the Same Trap?
Nosey Neighbor Nellie Can Find Out About Your Probate. Really.
Michael Jackson’s Estate Pulled into Seemingly Endless Probate Court Battles
Lifetime QTIP Trusts – The Gift That Keeps Giving
Is Your Estate Plan as Stale as Last Week’s Ham Sandwich? 5 Reasons to Update Your Estate Plan
March
Is a Revocable Living Trust Right for You?
Is a Payable on Death Account Right for You and Your Family?
Irrevocable Trust Decanting in 4 Steps
IRS Announcement: Estate Tax Closing Letters Will Now Only Be Issued Upon Request
Investment, Insurance, Annuity, and Retirement Planning Considerations
If You Die Without a Will, Does Your Spouse Inherit Your Entire Estate?
How to Pick a Trustee, Executor, and Agent Under a Power of Attorney
How to Minimize the (Voluntary) Federal Estate Tax with Portability
How to Minimize Legal Fees After Death
HELP! This Probate Is Taking Forever!!!
Four Steps to Stop Mail Addressed to a Deceased Person
Five Things You Need to Know About the Recently ABLE Act
Flo Jo’s Tragic Mistake: A Missing Will
5 Reasons Why Uncle Bill May Not Make a Good Trustee
Financial Firms Roll Out Form Aimed at Stopping Financial Elder Abuse
5 Reasons to Embrace Estate Planning
Estate Planning: 3 Reasons We Run the Other Way
Estate Planning Basics for Newlyweds – How to Get Prepared for the Unexpected
Escape From a Bad Trust: 5 Strong Reasons to Decant Your Trust
Doris Duke’s Trustee Bilked Estate for $1M: How Well Do You Know Yours?
Don’t Leave Your Trust Unguarded: 6 Key Ways a Trust Protector Can Help You
Does Your Estate Plan Protect Your Adult Beneficiaries?
Who’s Going to Get It: Do You Really Know the Beneficiaries of Your Dynasty Trust?
Dispelling the Top 3 Estate Planning Myths
Discretionary Trusts – How to Protect Your Beneficiaries From Bad Decisions and Outside Influences
Did you include your grandkids in your will? 5 Tips to Avoid Common Problems
Did Whitney Houston Leave Too Much Money To Bobbi Kristina?
Dennis Hopper Saves Heirs with Last Minute Estate Plan Changes
Decanting: How to Fix a Trust That Isn’t Getting Better With Age
Avoiding Guardianship When you are Incapacitated
Decanting: How to Fix a Trust That Isn’t Getting Better With Age
Who Should I Choose as a Successor Trustee
Celebrities Who Failed To Recognize Unborn Children in Their Wills: A Teachable Lesson
February
Caution: Your Traditional Asset Protection Plan is Set Up to Fail
How to Choose a Trustee
Name a Guardian for Your Child
Caution: Creditors Now Have Easy Access to Inherited IRAs
Big Bang Theory Star’s “Ironclad” Prenup Challenged: How Does Yours Compare?
Will Your Family Be Able to Find Your Original Last Will?
Ways to Avoid Court Proceedings
Are Handwritten Intentions Enforceable? Princess Diana Thought So…
An Estate Planning Checklist to Facilitate Wealth Transfer
Aging.gov: A New Resource for Older Americans and Their Families
AB Trusts – Do You Need to Get Rid of Yours?
A Powerful Exercise to Surface the Values You Want to Pass on to the Next Generation
10 Types of Trusts: A Quick Look
5 Tragic Mistakes People Make When Leaving Assets to Their Pets
5 Things Every New Mother Needs to Know About Wills
New Legislation Could Mean the End of Estate and GSTT Taxes What This Means for You and Your Family
5 Reasons to Protect Your Retirement Accounts Now
5 Mistakes Made by Successor Trustees (and How to Prevent Them)
5 Good Reasons to Decant a Trust
3 Ways to Minimize Estate Planning Fees
3 Tips for Overwhelmed Executors
3 Simple Ways to Avoid Probate Costs
3 Reasons You Want to Avoid Probate
Who Needs an Estate Plan?
AB Trusts – Do You Need to Get Rid of Yours?
How to Pick a Trustee, Executor, and Agent Under a Power of Attorney
Better to Play it Safe: Proactive Estate Planning and Cognitive Impairment
Will Your Revocable Living Trust Avoid Probate? It Depends.
Why Your Estate Planning Project Must Morph into a Process
Estate Planning Tips for Commitment Without Marraige
3 Celebrity Probate Disasters and Tragic Lessons
3 Examples of When an Irrevocable Trust Can – and Should – Be Modified
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| Phone: 608-661-4333

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