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.

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.

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.

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!