Guardian ad Litem

Has someone recommended that you get a Guardian ad Litem in your case?  Do you have no idea what this means?  A guardian ad litem is an attorney who has the job of representing the best interests of the children. 
In some cases, parents may request a guardian ad litem be appointed.  In other cases, a commissioner or judge may order that a guardian ad litem be appointed. 

There are both public and private guardians ad litem.  A public guardian ad litem can be appointed in custody cases where there are allegations of abuse or neglect or in protective order hearings.   A public guardian ad litem also represents children in foster case.   A private guardian ad litem can be appointed in any case where there are issues regarding parent time or custody, especially in high- conflict divorces. 

The guardian ad litem has the responsibility to make recommendations as to what the judge should do in the children’s best interests.  In order to make these recommendations, the guardian ad litem will conduct an independent investigation, including, but not limited to, interviewing the children, interviewing other witnesses, reviewing documents, visiting homes, and talking to other professionals.   The guardian ad litem will consider what the children want, as long as it is in the child’s best interests.  The courts weigh the recommendations of the guardian ad litem very heavily. 

A private guardian ad litem will bill the parents for the services provided.  The judge or commissioner may allocate the fees to be split equally or may make any division of the fees as they find to be fair.

All of the attorneys in our office are also qualified guardians ad litem. We can help!

What alternatives are there to guardianship and conservatorship?

A guardianship and conservatorship removes the fundamental right of the protected person to make his or her own decisions.  Because of this profound loss of freedom and dignity, state laws requires that guardianship and conservatorship be imposed only when less restrictive alternatives will be ineffective.  Some incapacitated individuals can make responsible decisions in some areas of their lives but not others. Therefore, the law provides a preference for a limited guardianship and conservatorship.  A limited guardian or conservator has only those powers listed in the court order.

Proper advanced planning can often prevent the need for a guardianship and conservatorship.  Through the use of trusts, advance healthcare directions, powers of attorney and representative payees, a guardianship and conservatorship can be avoided.  However, those things must be put in place before a person loses their mental capacity.

Contact us for help.

Wills

A Will allows you to designate a personal representative to handle and settle your estate and financial resources (personal property, bank accounts, real estate, etc.) after you die. If you have minor children, it is important to have a Will in order to designate who will take care of your minor children and who will take care of your minor children’s financial resources should you pass away. You can designate the same person to take on both of these roles, or your can select different people for these roles.

Your personal representative will take your Will to probate court after you die in order implement your Will. In Utah, this is generally a fairly simple process. If it is really important to you to avoid probate court, you can set up a Trust. Trusts can be harder to maintain and usually require you to have your property (your house, your bank accounts, your cars, etc.) titled in the name of the trust. Not everyone needs a trust.

Power of Attorney

If you are not available to act for yourself, either because of geography or disability, it can create problems for your family. A general financial Power of Attorney allows a person to act on your behalf either 1) immediately or 2) when you become disabled.

If you work overseas it can be very useful to have a General Power of Attorney that is in place immediately. If you become injured or disabled and can no longer communicate your wishes it is critical that you have a General Power of Attorney so that your agent can act on your behalf.

For example, if you have designated your spouse as your agent and you have a severe stroke, your spouse can act on your behalf and manage your affairs as you recover. Things will run much more smoothly for your family if you have a Power of Attorney in place. If you do not have a Power of Attorney your spouse may have to seek a conservatorship of you in order to manage your affairs. Seeking a conservatorship takes longer and costs much more that having a Power of Attorney.

There are some risks associated with having a Power of Attorney. It is very important to select someone that you trust as your agent. Be careful that you do not designate someone who has financial or addiction problems as your agent.

We would be help you draft a Power of Attorney. Call us.

Advance Healthcare Directives

An Advance Healthcare Directive is what used to be called a Living Will and a Medical Power of Attorney. In an Advance Healthcare Directive a person is able to say how they want their end of life experience to be. The person designates which life saving procedures they would like done and which procedures they do not want. A person can also designate an agent to make medical decisions for them if the person is unable to make decisions on his or her own. Having an Advance Healthcare Directive can take a lot of pressure off of family members at a very stressful time and ensure that your wishes are met.

Who Needs a Trust?

A trust is used to distribute property or provide for a loved one after you have passed away. A trust allows you to set out rules like how, what, when and where property will be given to your beneficiaries. There are many different kinds of trusts. Trusts are a useful planning tool to reduce estate tax liability, protect property, and avoid probate. However, trusts are more complex than wills and are not necessary for everyone. Here is a good article outlining the pros and cons of living trusts: http://www.elderlawanswers.com/resources/article.asp?id=1110§ion=4

Special Needs Trusts

Parents of adult children with special needs understandably worry about what will happen to their adult children after they pass away. Many people with disabilities receive government benefits, such as SSI, SSDI, and Medicaid, which are very important to their quality of life. If parents leave money directly to their adult child with disabilities the adult child will likely lose their government benefits. The way to solve this dilemma is to create a special needs trust.


Parents can leave money to their adult child with disabilities through a special needs trust and the adult child can still receive their government benefits. The money in a special needs trust cannot be used for items covered by government benefits such as food, but it can be used to cover many things that will improve the adult child’s quality of life such as transportation, clothing, hobby supplies, pets and pet supplies, and educational expenses. Often parents designate a sibling of the adult child with disabilities to be the trustee for the special needs trust.


Many families fund special needs trust by leaving a portion or all of their life insurance to the special needs trusts. A spouse can also set up a special needs trust for his or her spouse with a disability. Special needs trusts can provide caregivers with peace of mind about the future of their loved one with disabilities. Please contact us if you have any questions about how a special needs trust might benefit your family.

Legal Separation vs. Divorce

“The difference between a divorce and a legal separation is that a legal separation gives a husband time to hide his money.” ~Johnny Carson

A lot of clients ask us if they should get a divorce or a legal separation.  These are two different processes and there are pros and cons for each process.  A divorce completely dissolves the legal marriage of a couple.  It is permanent.  A divorce will settle issues of property, debt, child custody, child support and parent time.    A divorce can take a long time or a minimum of 30 days.

A legal separation (which is called separate maintenance in Utah) does not end your marriage.  Couples often seek a legal separation when they intend to live apart but wish to remain legally married.   Some couples choose a legal separation for religious or medical insurance reasons.  In a legal separation you ask the court to make an order addressing the issues of debt, property division, property division, custody, child support and parent time.

The filing fee is the same for either a legal separation or divorce.  A legal separation is not a stepping stone to divorce - it is a different path.  You cannot convert a legal separation into a divorce.  If you first become legally separated and later want a divorce you have to file new documents with the court for the divorce.

If you want orders from a judge telling the parties what is going to happen with custody, parent time, support, property, debt, etc., during the time between when you file your divorce and when you get your final divorce decree, you need to ask the court for temporary orders.

If you have any questions about legal separation or divorce, call us.

What are guardianships and conservatorships?

If an adult is not able to provide for their care or protect their physical or financial safety, the court may appoint a substitute decision maker, either a guardian  or conservator or both.  You must go through the Court to have a guardian and conservator named.    Even if you nominate someone to be your guardian in a Power of Attorney or Advanced Healthcare  Directive, this person will still need to be approved by the court.

A guardian is a person or institution appointed by a court to make decisions about the personal well-being —  residence, health care, nutrition, education, personal care, etc. — of an incapacitated adult, who is  called a "protected person." 

A conservator is a person or institution appointed by the court to make decisions about a protected person's estate.  The protected person's estate includes all of his or her property, business and personal. Some examples are income (such as wages, an annuity, a pension, and Social Security or other government benefits), real property (buildings and land), and personal property (furniture, cash, bank accounts, certificates of deposit, stocks, bonds, motor vehicles, and other valuables). A conservator must use reasonable care, skill and caution to manage and invest the estate to meet the protected person's needs over his or her expected life.

Utah Divorce Classes

If you have children your divorce cannot become final until you take two classes.  One is the Divorce Orientation class.  This class is an hour long and costs $30.  However, you can cut this cost in half, to only $15, by taking the class within 30 days of filing the petition (if you are the petitioner) or within 30 days of being served (if you are the respondent).  The second class is the Utah Divorce Education class, which is two hours long. These classes are usually offered back to back.  This class is $35.  For both classes, you have to pay by cash.  You must be on time.  They will not let you in late.  Do not bring your children, they are not allowed.

These classes are actually pretty interesting.  The Divorce Orientation class goes over statistics about divorce and some things to consider during the process.  The Divorce Education class talks about how children handle the divorce process and gives some tips to help them.  It also gives some tips to help you as you navigate the new waters of post-divorce co-parenting.  If you attend with an open mind, you will likely learn some tips to help you as you transition from married to divorced.

If you need help with your divorce, give us a call.

Do I Need to File for Probate?

When a person dies, their family may be left wondering if they need to go through probate or not. Probate is not always necessary or required. Usually, probate is only needed if the deceased person left property that needs to change title through a court order. For example, if the deceased person was the sole owner of some real estate, there is no one who can sign the title over to the next generation. The only way for that property to pass to the next generation is through a court order.

Probate may also be necessary if there is a dispute among the heirs or beneficiaries. If everyone cannot work things out together, then the Court will have to decide things for them through probate.

Some people want to avoid probate and plan for that through their estate planning. If you have questions about probate or avoiding probate, please give us a call.

Probate

Probate is the legal process for handling someone’s estate after they die. The process begins with someone requesting that the court appoint them as the personal representative (executor). The personal representative will also provide the court with proof of the deceased person’s death and a copy of their will or evidence that they did not have a will.

Next, the personal representative will be responsible for identifying and inventorying the deceased person’s property, determining the value of the property and keeping it safe, paying any taxes or debts, and distributing the remaining property to the deceased person’s heirs.

Probate involves filing documents with the court and sometimes appearing in court. A personal representative can choose to represent himself or herself through this process or he or she may hire an attorney to assist them. There is also a filing fee of $360.00 that must be paid to the court.

If you would like to know more about probate, give us a call.

You've Written a Will, Now What?

You are responsible; you wrote a will and made arrangements for your family, property and burial arrangements. You are good, right? Maybe not. Changes in your life circumstances- and circumstances of those around you might make it necessary for you to update your will. Some examples are:
1) Getting married
2) Acquiring new real property
3) The death or incapacity of anyone mentioned in these documents
4) A change in how you want your property managed or distributed

If any of the changes above have occurred, it is important to consider the need to make changes to your will to reflect your situation and your wishes.

Do You Have an Estate Plan?

Estate planning is the process of planning now for what you want to happen with your assets when you die or become incapacitated.  Estate planning includes wills, trusts, advance directives and other related documents.  Estate planning may take different forms depending on the amount of assets to be distributed after your death.  Effective estate planning can be a relief to your heirs after your passing as it may help them avoid the hassle of probate and will help them carry out your wishes after your death.

We’d be happy to help you an estate plan that meets your goals!

Changing Your Name After Divorce

Some women choose to return to a previous name after a divorce.  If your Divorce Decree provides for the name change it significantly simplifies the process.  This is why we encourage women to include the language for a name change in their Divorce Decree – even if they say they do not want to change their name at the time of the divorce.  You are not required, nor can you be forced, to change your name after a divorce.

If you want to change your name, you should start by getting a new Social Security card and driver’s license.

Here is a link that outlines the process for getting a new Social Security card:

https://faq.ssa.gov/en-us/Topic/article/KA-01981

Here is a link that outlines the process for getting a new Driver’s License:

https://dld.utah.gov/dupdl/

Once you have a new Social Security card and/or driver’s license you can work on changing your name everywhere else.

Common Law Marriage

Common law marriage is a legal concept allowing people who meet certain conditions to be considered legally married - even if they were not formally married.    Utah does not recognize traditional common law marriage.  However, in Utah you can ask the court for judicial recognition of a relationship as a marriage.  The court will look at several factors such as whether the couple held themselves out to the public in a way that people would interpret as married and if the couple shared resources as a married couple.

Recognition of a relationship as a marriage is used to  grant marital status to past relationships. This may be important in property distribution or in determining child custody  If a couple wants their relationship recognized as a marriage from this point forward, they should get married.  Partners can file together, or on their own, for judicial recognition of a relationship as marriage.  A third party, such as a family member, can also file.

 

BLOGGING INTO TOMORROW, and being nimble

Tyche is the Greek goddess of fate. She has reminded me that while fate may belong to another, how we behave in the face of her gifts and onslaughts is our own. 

These days are showing us things that we have not yet seen. LOVS has been incredibly fortunate in that we have always worked out of our respective homes and thus have been “virtual” since inception. (I tell people that we are actually holograms. Who could prove otherwise?)

We are pioneers of the virtual law office. We are comfortable in this new world and are able to navigate it with grace, alacrity and effectiveness. 

But today, being nimble is the thing. Our world is sliding beneath us and we need to navigate it as it shifts, with aplomb and humor. And food, and perhaps wine.

So, here is my “nimble” story for tonight. It originates with Tom Robbins in one of his earlier books, Still Life with Woodpecker or Even Cowgirls get the Blues or my favorite, Jitterbug Perfume. I read those books many times in the long-ago years but now cannot recall which contained the germ of this life-changing story. But I recall the story. And I have made it my own. Forgive me, but take the lesson.

Once there was a man who loved apple pie. He loved apple pie so much he went to apple pie contests all over his state, and then the nation, and then even as far as Germany and Indonesia and the Baltic. He coveted the finest recipe for apple pie and paid many connoisseurs handsomely for their insights and advice and directions to this exquisite apple pie. Awash in these heady circles, he finally caught wind of the most pristine and unique apple pie ever baked: an apple pie that was both otherworldly, delicious, and that evoked thoughts of childhood, warm households and kind grandmothers. The man was smitten and determined to locate that revered apple pie.

The man pursued the esteemed apple pie to the literal ends of the earth. He went to Nepal and climbed mountains and finally located the likely spot of the insightful grandmother who allegedly baked this venerated apple pie. She was located on a high mountain in a remote village. He waited until spring and then climbed the mountain at the first thaw. He knew he was close to achieving his goal: the elusive apple pie that he sought all his life.

He arrived at the top of the mountain. He encountered the Grandmother, and, gasping from his climb, told her that he had climbed mountains in search of a taste of her renowned apple pie. She looked at him pityingly, and said, “We’re all out of apple.”

He looked back at her. He shrugged. He said, “Make it peach.”

-Virginia Sudbury

Why Can’t I Find Easter on the Utah Parent Time Schedule?

 Easter is coming and if you are trying to find out who gets the kids for the Easter holiday you will need to keep looking.  The statute doesn’t discuss the Easter holiday at all.   The Easter holiday is treated just like any other weekend.   In some school districts, Easter falls during Spring Break. Utah statue says the noncustodial parent gets spring break in odd years and the custodial parent gets it in even years. If Easter isn’t during Spring Break, then the parent who has the children that weekend for the normal rotation would have the children.

Of course, you and your co-parent are able to decide on a different schedule or arrangement, if you prefer.   It is smart to get any agreement in writing to protect yourself and make sure the arrangements are clear.

Happy Easter!

Order to Show Cause

What do you do when your ex-spouse violates your divorce decree? If you want to have a judge enforce your divorce decree you can file an Order to Show Cause re Contempt. You will need to file an Order to Show Cause, A Motion for an Order to Show Cause and an Affidavit in Support of an Order to Show Cause. An Order to Show Cause requires personal service. This means that you have to have someone else serve the opposing party. Usually people use constables, law enforcement officers or a private service company.

In your Motion for an Order to Show Cause it is important to list all the ways that the other party has violated your divorce decree and what you want to happen. Usually, you ask the other party to stop doing what is wrong or start doing what they are supposed to. An Order to Show Cause requires a hearing. You will get the hearing date when you file your papers. Depending on how busy the courts are you might have to wait for a month or two before you can have the hearing.