What is the Difference Between Custody and Guardianship?

What is the Difference Between Custody and Guardianship?

Custody and guardianship both allow someone else to care for a minor child. The main difference is how they’re set up. Keep reading to find out more.

What is Custody?

Custody is a family court order that allows someone to care for a minor child. One of the most common uses of custody is in divorce cases where the court will decide if the parents share joint custody, one will have primary custody, or, in rare cases, only one will have custody. A parent may also lose custody in cases of abuse or neglect.

What is Guardianship?

Guardianship comes from the probate court rather than family court. The guardian has similar powers to a parent or another person with custody. Guardianship may be used when both parents pass away or when both parents don’t have the physical or mental capacity to care for their child any longer.

Guardianship can also be used in the case of an adult who due to illness, injury, or disability is unable to care for himself or herself.

What’s the Difference Between Joint and Physical Custody and Guardianship?

Custody arrangements are often divided into physical and legal custody. Physical custody means a parent has the right to spend time with a child such as during visitation periods. Legal custody means a parent has the authority to make decisions over things like healthcare and education. With the trend towards awarding joint custody, most parents share both physical and legal custody, but this may not always be the same.

A guardianship is a legal arrangement, although the guardian often will also take in the child physically. If the guardianship is temporary, such as while a parent is in the hospital or jail, the guardian may be limited to making day-to-day decisions for the child during that time rather than having the same authority for more permanent decisions as a parent or someone with permanent custody would.

How Long Do Custody and Guardianship Arrangements Last?

Custody arrangements usually last until the age of majority. The parents or another interested party may request a modification of custody if there has been a significant change in circumstances.

Guardianships can also be permanent until the age of majority, but they may also be temporary. For example, a parent who is serving overseas or going in for a surgery may appoint a temporary guardian.

Can There Be Both Custody and Guardianship?

In most situations, guardianship is only used when both parents are unable to care for a child. If there is joint custody and something happens to one parent, the other parent will usually take on full custody at least until the other parent recovers. If something happens to both parents or the other parent is temporarily or permanently too far away to take on a greater role, the court may appoint a guardian. If either parent becomes able to take on full custody, the court would usually end the guardianship.

How Do Custody and Guardianship Start?

Custody often starts as one of the decisions a judge makes in a divorce case. The judge has the final say and decides what’s in the best interests of the child. The parents can ask for a certain arrangement, but even if both parents are in complete agreement, the judge may opt for a different course of action.

Custody can also arise out of an abuse or neglect case. Terminating or reducing parental rights is a serious decision, and the court will give anyone who such allegations have been made against the chance to answer the allegations. However, custody cases are not criminal trials, and the judge’s ultimate role is to further the best interests of the child.

Guardianship is also overseen by the court, but the process is slightly different. If a parent who is currently of sound mind and able to care for his or her child needs to appoint a temporary guardian, the court will almost always approve that choice. Parents can also nominate a potential guardian in case they are ever incapacitated. This choice is not automatic, since the court will want to check that the nominated guardian is able to currently serve in the role when needed, but the judge gives the nomination great weight. In cases where someone becomes incapacitated without a nominated guardian, the court will appoint a guardian after listening to the recommendations of family members and other interested parties.

How is Adoption Different Than Guardianship?

Adoption can be similar to permanent guardianship in many practical daily aspects, but there are important legal differences. First, if the parents are still living, adoption permanently ends their parental rights, while guardianship does not. A living parent who appoints a guardian may still have a legal obligation to provide financial support for their child, while an adopted child is the sole responsibility of the adopting parents. Finally, the child doesn’t have any automatic rights to inherit from a guardian but do from adoptive parents the same as a biological child.

Because of the permanence of adoption, it would generally only be part of your estate plan in case you pass away. For situations where there is a chance of recovery, you would want to use a guardianship.

Can Divorced Parents Nominate a Guardian?

Since the courts will default to another parent with custody before a guardian, nominating a guardian when the parents are divorced is more complicated. If both parents can agree to nominate the same guardian, such as a godparent, the court would honor that nomination if something happened to both parents. If each parent nominated a different guardian in their estate planning documents, it would first depend on which parent last had custody. For example, if something happened to the mother, the father took custody, and then something happened to the father, the court would start with the guardian the father nominated. However, both sides of the family would be able to appear in court and ask for a different guardian, and the court would act in the best interests of the child.

What About Grandparents?

In most situations, grandparents don’t have automatic legal rights to care for their grandchildren. This doesn’t mean the children can’t spend a week with grandma and grandpa, but grandparents don’t have the authority to make important legal decisions. If something happened to the parents, schools, doctors, and others couldn’t automatically treat the grandparents as guardians.

Of course, in many families, having the grandparents step in would be best for everyone. Judges understand this and favor awarding custody or guardianship in the right situations. You just need to make the appropriate legal arrangements rather than assuming the grandparents could automatically step in.

How Do You Terminate Custody or Guardianship?

In most custody cases, the more appropriate course of action is to request a modification of custody due to a significant change in circumstances. However, the other parent or another person may petition for termination of custody in cases of abuse or neglect.

Where guardianship is voluntary, such as a parent appointing a temporary guardian while they are away, the parent can terminate the guardianship at virtually any time for virtually any reason. Where the parent is incapacitated, members of the family may petition the court stating why the current guardian isn’t fulfilling his or her duties or why a new guardian would be better for the child.

What Happens if a Guardian Dies?

If a guardian dies or is otherwise unable to fulfill his or her duties, the court will obviously end the guardianship. However, the guardian is not treated as a parent for the purposes of appointing a new guardian. Instead of the guardian nominating a successor guardian, the court will look back to see if the parent nominated an alternate guardian. Otherwise, the judge will again listen to any recommendations from family members in trying to determine the best interests of the child.

Do You Need an Attorney?

It can be a good idea to have an attorney help you to properly establish a guardianship to care for your child should the unthinkable happen to you. To learn more about what you need to do, talk to one of the experienced estate planning attorneys at Lilac City Law. We’re conveniently located in Spokane and serve the surrounding communities.

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What is Permanent Guardianship & Why Does It Matter?

What is Permanent Guardianship & Why Does It Matter?

The importance of selecting a viable guardian early in a child’s life cannot be understated. In the event a parent passes prematurely or becomes unable to deliver the caregiving needs of a minor child, having a responsible and loving family member or trusted friend ready may prove invaluable. Without someone who has the force of law behind them, your child’s future remains uncertain.

A legal guardianship is not an informal agreement between family members and loved ones. While parents can discuss and agree that a sibling or grandparent would do the right thing in the event of a tragedy or setback, the courts hold sway unless you have a binding determined estate plan in place. That’s why it’s imperative to work with an experienced attorney to create legally-binding documents that ensure the health and welfare of your child’s future. That being said, these are elements of permanent guardianship parents would be wise to promptly consider.

Guardians & Parental Rights

People who do not work in the legal system are often surprised to discover that the family court does not necessarily handle guardianships. In most cases, family court judges decide child-rearing issues such as custody, visitation, and support, among others. Generally, probate handles guardianships because they are more closely related to Last Wills and other aspects of estate planning. So, in terms of guardianships coming into conflict with proceedings such as divorce or parental estrangement, cases are often referred to the probate system.

Although the discussion here remains focused on permanent guardianship, there are many instances when parents or the courts designate temporary status. For example, there are times when a child’s parent(s) are unable to provide care, support, or make consistent decisions due to temporary incapacitation. In such instances, they could transfer authority to their designee until they are able to resume parental responsibilities. In such instances, the parent does not necessarily surrender their primary rights.

Opting for a court-approved temporary guardianship should not be taken lightly by parents. When circumstances dictate that a disability, health condition, or addiction crisis renders a parent unsuitable to handle day-to-day caregiving functions, the court may find that it’s in the child’s best interest to terminate parental rights at some juncture. In such instances, guardianships are converted from temporary to permanent even against the parent’s wishes. That’s why it’s crucial to work with an experienced attorney when agreeing to temporary guardianship.

Making A Temporary Guardianship Permanent

Although temporary guardianships are intended to come to a logical end, sometimes circumstances require change. This may be the case when someone takes on the guardianship believing a parent will recovery from their challenge or condition within a reasonable time frame. Tragically, when parents lose their battle with health and wellness matters, permanence and stability tend to be in the child’s best interest. These are common reasons people petition the court for permanent guardianships.

  • The remaining parent passes away due to illness
  • The parent(s) has been incarcerated permanently or beyond the child reaching 18 years old
  • The parent can no longer adequately care for the minor child

When a guardian wishes to change the court-mandated designation to a permanent one, there are procedural steps that must be undertaken. It’s essential to work with an experienced attorney in such matters because the court bureaucracy can be difficult to negotiate, and missteps often prove costly.

Start by scheduling an appointment with an experienced attorney to gain insight about what permanent guardianship entails. Before making this extraordinary commitment, it’s important to understand all the rights and obligations that come with it in order to make an informed decision. If you still wish to proceed, these are legal hurdles that will need to be addressed.

Meet Court Requirements

The court’s responsibility in this process is to always protect the child’s best interests. The desires of well-meaning adults run a distant second. That’s largely why Washington State, and many others, set a stringent standard for permanent guardians. These are items required under Washington State’s Certified Professional Guardianship Program.

  • Must be at least 18 years old
  • Have no felony convictions on your record
  • Have no misdemeanor convictions that involve moral deficiencies
  • Be of sound mind and a person the court deems suitable
  • Demonstrate financial stability and a reasonably good credit rating

Although family members may not be petitioning the court under this specific program, its requirements highlight that you will need to make a persuasive case to a judge.

Gain Parent of Current Caregiver’s Consent

In instances where the parent can no longer raise the child or someone else has a temporary arrangement, a family member or interested third-party can petition to have the temporary order transferred to them and enhanced to a permanent one. One of the ways this pathway can be processed more seamlessly is with the current caregiver’s permission. By securing an affidavit to that effect, the court may be more inclined to grant the petition.

Provide Notice To Interest Parties

Once your attorney has completed your petition and filed with the court, all relevant parties must be notified in a timely fashion. This may include living parents, family members, and pertinent people in the child’s life that may also want to take on the guardian role. Make certain that your attorney has a list of all pertinent family members and potentially interested parties. Failing to complete this procedural step could upend the process or result in civil litigation brought by a family member or person with standing.

Your Day In Court

The fundamental question the judge considers when making someone a permanent or temporary guardian for that matter is whether the legal designation serves the child’s best interest. The judge will weigh a wide range of facts in reaching a conclusion. These may include the following.

  • Emotional bonds between the child and potential caregivers
  • Ability to provide necessities such as a safe, stable home, food, and medical care
  • Financial stability of the guardian candidate
  • Educational background and employment history
  • Issues involving previous alcohol or substance abuse
  • Mental and emotional fitness of the prospective guardian

You can anticipate answering pointed questions asked by the judge or any parties who oppose or have an interest in the petition. Securing permanent status can be something of an uphill battle when competing interests come into play.

What Parents Should Consider When Choosing A Permanent Guardian

In many cases, permanent guardianships are established by parents through estate planning documents. Parents who take such proactive measures understand that they are ensuring their child will be in good hands should they die prematurely or be otherwise unable to provide adequate care.

Ranked among the most significant challenges parents face is making an informed decision about whom to nominate. But by taking time to think through the process and weigh your options, you will be able to select the best possible candidate. These are things to consider.  

  • Consider Your Core Values: Although you may be immersed in a loving family, child-rearing remains deeply personal. Parents, siblings, and other loved ones may or may not share your core values. Take an inventory about issues such as religion, political perspectives, education, integrity, and other things that truly matter. Then, see who best mirrors your core values and would make a suitable guardian if necessary.
  • Multiple Guardian Option: While it may be somewhat uncommon, there are times when the designated guardian becomes unable or unwilling to fulfill the duty. That’s why it’s in the parents’ best interest to include an alternative in your estate planning documents.
  • Financial Stability: We live in a world in which financial security matters. A guardian who manages money well may be more likely to sustain a healthy and secure home life for your child. This person may also be asked to manage any assets to support the minor or work cooperatively with your estate’s trustee.
  • Speak To Your Family: Having an open and honest discussion about your desire to enlist a family member or loved one as a potential guardian must be treated with care and compassion. Take the time to explain your reasoning in a way that does not slight or otherwise make people feel less than adequate. You are basing the decision on what you perceive as an upbringing most closely aligned with your wishes. It may be worthwhile that while you respect others’ values and abilities, there are specific reasons for your choice.

Once you have reached an agreement with a guardian candidate, it’s vital to follow through with an attorney and make the designation legally binding.

Work With An Experienced Permanent Guardian Attorney

One of the most proactive measures to ensure that your child will grow up in a safe and healthy environment if something happens to you is designating a guardian in your estate planning documents. Giving the right person the ability to make essential life decisions allows you to provide care and comfort, even in your absence. If you have not yet designated a legal guardian or would like to update an existing plan, contact Lilac City Law today.  

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What is a Guardian Ad Litem?

What is a Guardian Ad Litem?

A guardian ad litem represents the best interests of a child in court. A guardian ad litem can also represent an adult who is incapacitated or has diminished mental capacity.

What’s the Difference Between a Guardian ad Litem and an Attorney?

A guardian ad litem does not perform the same tasks as an attorney. They may make recommendations to the judge or investigate certain facts at the request of the judge, but they don’t argue on behalf of the person they’re representing in the same way as an attorney. In some cases, the guardian ad litem may represent someone who isn’t a named party in the case, such as a child in a divorce proceeding.

When is a Guardian Ad Litem Used?

A guardian ad litem may be used in several different types of cases.

  • Divorce or custody proceedings to represent any children.
  • Child abuse investigations.
  • Foster care or removal cases.
  • Determining whether an adult has full mental capacity.

What Does a Guardian Ad Litem Do?

The guardian ad litem works for the interests of a specific person, but their true role is to work for the judge rather than directly for that person. The judge may ask them to find out certain facts, to monitor certain activities, and to present a report in court. Exactly what the judge asks of the guardian ad litem depends on the case.

Does the Guardian Ad Litem Make any Decisions?

The guardian ad litem makes no legally binding decisions. Through their investigation and experience, they may come to a certain conclusion about what they think should happen. However, the judge retains the final authority to overrule them or request additional information in areas the guardian ad litem may not have considered.

What Does Ad Litem Mean?

Ad litem is Latin for “for the purposes of the suit.” The appointed person takes on the role of the guardian but only for the specific purposes being discussed in court and only for as much time as it takes to resolve the court case.

What Does a Guardian Ad Litem Do for Your Children in Estate Planning?

If something happens to you, a guardian ad litem can play several roles for your children in executing your estate plan. One duty is to monitor the probate process and ensure that your child receives what you intended in a way that benefits him or her. A guardian ad litem can also help your child through any guardianship proceedings including both making sure your stated wishes are honored and helping the court gain an objective view of what’s best in situations you may not have considered.

What Does a Guardian Ad Litem Do for an Incapacitated Adult?

A guardian ad litem speaks on behalf of an incapacitated adult in any court proceedings necessary to execute his or her estate plan. The guardian ad litem can also serve as a go-between between the court and medical professionals to help the court of a neutral understanding of what doctors are recommending without having to call the doctors to testify in court.

How Does a Guardian Ad Litem Receive Compensation?

Guardian ad litems are paid by the parties receiving the benefit of their services. In a family court case, the parents may split the cost. In an estate administration case, the guardian ad litem may be paid out of the estate. In an incapacitation case, the guardian ad litem may be paid out of the incapacitated person’s assets.

Who Picks the Guardian Ad Litem?

The court appoints a guardian ad litem from a list of qualified individuals. It’s possible to nominate a guardian ad litem, but they need to be court-approved.

What Does it Take to Become a Guardian Ad Litem?

A guardian ad litem must complete a training course sponsored by the court. They also need several years of experience in social work, dealing with children or the elderly, dealing with people with disabilities, or in related fields.

Do You Want to Have a Guardian Ad Litem?

A guardian ad litem can be a useful advocate in certain court proceedings. However, you may be worried about the cost or whether the guardian ad litem would really be able to follow your wishes. The key thing to remember is that guardian ad litems do the most in contested court cases. If you can avoid the need to have a judge making decisions, you can avoid the need for a guardian ad litem. This might be by creating a thorough estate plan that covers every potential scenario so that the judge has a clear understanding of what you want without needing to rely on outside input.

What Can You Do if You Disagree with the Guardian Ad Litem?

If you are the person being represented by the guardian ad litem, you can petition the court to find you mentally fit to speak for yourself. Even if the court finds that you don’t have the capacity to do so, the judge can still give weight to your requests in consideration with any feedback from your healthcare providers.

If the guardian ad litem is representing a child or another family member, the first step is to speak to them directly. They generally want to have as full an understanding of your family picture as possible and may not even be aware of your concerns. If this doesn’t work or you believe that they’re abusing their position,  you can make a motion with the judge overseeing the case to take a certain action or, in extreme circumstances, to remove the guardian ad litem.

What Happens When the Guardian Ad Litem Goes to Court?

The guardian ad litem may create a written report to submit to the judge. Any parties in the court action will generally be given a copy along with time to review it before the judge makes any final decisions. The guardian ad litem also usually makes a verbal report during a court session. The judge may ask questions, and the parties will usually be able to ask questions or speak as well. In more contested situations, this may turn into a more formal cross-examination like any other witness.

Remember, that the guardian ad litem is there to represent the best interests of a child or incapacitated person rather than to win a case. The best approach if you disagree with their findings is often to bring out new facts or things they didn’t consider rather than directly arguing against their recommendation.

Do You Still Need an Attorney if You Have a Guardian ad Litem?

A guardian ad litem is not a replacement for an attorney. The guardian ad litem helps to establish facts that an incapacitated person may not be able to bring up on their own. An attorney focuses on how those facts fit within legal rights and principles. An attorney also helps to figure out the best way to legally achieve the desired outcome and to prepare any necessary documents. Further, an attorney can only act for a competent client — either directly or under the guidance of someone else — so an incapacitated person needs more than just an attorney.

Does A Guardian Ad Litem Replace a Guardian or Conservator?

A guardian ad litem also doesn’t replace a guardian, conservator, estate administrator, or other similar roles. The guardian ad litem may monitor daily activities, but their job isn’t to run them. Their job is to observe and report back to the court. You will need to have someone else to manage the daily affairs or yourself or your children. A guardian or conservator are often also expected to report to the court, but the guardian ad litem provides an additional person to do things like monitoring how the guardian or conservator is managing your finances.

Work with an Attorney

The key to properly using a guardian ad litem and not having any surprises is proactive planning. Whether you’d want or not want to have a guardian ad litem overseeing things, you want that decision to be in your control. You do that by having a thorough estate plan for your family. To learn more, talk to one of the estate planning attorneys at Lilac City Law in Spokane, Washington, today.

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How Hard is it to Terminate Guardianship?

How Hard is it to Terminate Guardianship?

Legal guardianship remains an important protection that allows one compassionate person to care for another. The practice is most commonly ordered by the courts to ensure adult oversight of minors. Although used to a lesser degree between adults, guardians help people navigate important everyday life decisions.

When the court appoints a friend, relative, or professional from an agency to become the guardian of an adult, it’s often the result of diminishing health or incapacitation. For children, these issues can be added to a disheartening list of problems such as abuse, neglect, abandonment, and becoming wayward. Although the reason the court considers someone a ward in need of protection and care, terminating a guardianship can be an uphill battle.

How To Terminate A Guardianship

It’s essential to keep in mind that adult and minor child guardianships can be vastly different. In large part, that’s due to the underlying reason the court deemed someone a ward of the court in the first place.

In both types of guardianship, the basic premise is that the individual cannot conduct reasonable self-care. This may be true of both minors and adults, but most children have parents in place to act in their best interest. When our valued elders, for example, begin to lose the physical and cognitive skills to make salient health, wellness, and financial decisions, oversight may be necessary. Other adults may temporarily fall ill, and the protections are put in place only until they recover.

When children go astray, become incapacitated, or a parent is unable to provide proper care for them, guardianship tends to be a stop-gap measure. Either the situation corrects itself, or the minor eventually becomes an adult and takes on their own decision-making. In either case, the court will need to be formally petitioned to end a guardianship.

How to Terminate an Adult Guardianship

In order to understand how to navigate the stringent legal process of ending a guardianship, it’s essential to consider how you got here. In all likelihood, either a third party petitioned the court and won a case against you to deem you incompetent, or you came to the process voluntarily. This difference has a substantial impact on termination.

Going to the court and asking to be voluntarily deemed a ward came with certain advantages. You probably had input about who would become your guardian during your recovery. And, your wishes about what areas this person would hold legal sway may have been negotiated. Terminating a voluntary guardianship often entails merely proving you have regained competence.

On the other hand, involuntary tracts could mean that you will face increased resistance from the party or parties that petitioned the court in the first place. That may mean overcoming objections as well as having documentation and testimony from experts that you are prepared to resume control over your affairs. These are common steps that are required to terminate a guardianship.  

  • File Legal Papers: A Petition to Terminate Guardianship, and a Citation or a Notice of Hearing, will need to be crafted and filed on your behalf. Supporting documents may be required to gain a hearing. Materials may include a final accounting reportIf your guardian or conservator oversaw your estate while recovering, a final reckoning of all financial records must accompany your petition. Papers may call for letters from you’re your physicians. Your doctors must provide statements that assert you have regained the ability to conduct your own affairs competently.
  • Serve Guardian & Others with Papers: All relevant parties must be formally notified that you have petitioned to terminate the guardianship via certified mail. If this step is not thoroughly completed, a judge will likely not hear your case.
  • Attend a Hearing: The judge will read the pertinent documents and likely ask questions. If others object to the petition, more comprehensive testimony may be required. Once the judge has been satisfied that you meet the legal standard, an Order Terminating Guardianship will be issued.

If the guardianship pertained to end-of-life considerations, the court generally requires a financial accounting before releasing the guardian. The challenges confronting parents or other loved ones trying to terminate a guardianship and regain custody can be significantly different.

How to Terminate Guardianship Over a Minor

In order to restore your parental rights and regain custody of a child, you may be tasked with petitioning the court to terminate a guardianship. Much like when adults are deemed wards of the court, the reason your child has a guardian in place will likely impact how difficult you can anticipate the process ahead.

For instance, if another family member petitioned the court to have your child made a ward, the underlying claims will likely need to be adequately addressed. If it involved substance abuse, neglect, or a health condition, a proactive filing and subsequent argument at a formal hearing would have to overcome the initial court findings. In other words, you face an uphill battle of basically proving your ability to properly care for yourself and the child. The goal of this rigorous process will involve persuading the court of the following.

  • The adverse situation has been resolved
  • It’s in the child’s best interest to be placed with a parent
  • You can successfully provide for daily health, wellness, and emotional needs of the child
  • You are financially stable or are receiving adequate public assistance
  • You enjoy positive extended family and community relationships

The process of regaining parental rights and terminating a guardianship requires crafting a highly persuasive petition and supplying authoritative supporting documents, as well as possible witness testimony. There are also a variety of legal pathways that can be accessed, depending on how and why you got to this point.

  • When Guardians Object: In cases in which the court-appointed guardian objects to their removal, a full hearing may be required. This brings together the key stakeholders in the process to determine whether to keep court oversight in place or give your child back to you.
  • When Guardians Agree to Termination: In such cases, parents need only demonstrate that they are competent and able to serve the best interest of their child in a stable and healthy fashion.
  • Terminating for Adoption, Marriage, or Service: The act of adoption effectively ends ward of the court status. The same holds true in marriage, and minors who enlist in the military enjoy grounds to terminate the guardianship over them.
  • When a Child Turns 18 Years Old: When a minor reaches the age of majority, they are no longer a ward of the court and the guardianship times out. The court-appointed person would be wise to file a notice with the court.
  • Guardianships Over Estates at 18 Years Old: Control over assets does not generally end when a minor turns 18 years old. The court will need to be petitioned, and a final accounting of the finances must be filed. The court must issue a directive releasing the assets before the previous ward can access them.
  • Cases of Emancipated Minors: When the court agrees to emancipate a minor, they no longer are deemed a ward of the court. Part of the hearing should include the automatic termination of the guardianship.

In some cases, the court-appointed person finds that they can no longer serve in that capacity. This could be due to illness, relocation, or they believe terminating the guardianship is in the minor’s best interest. The court enjoys great latitude in such cases and may decide to resolve the matter in a number of ways. The court may agree that the minor no longer needs or benefits from oversight. In many instances, the court appoints a new guardian to take over the responsibilities.

Should You Speak with an Attorney to Terminate a Guardianship?

The short answer is: Yes. That’s because the court system involves complex filings, documentation, and bureaucracies that are difficult for everyday people to navigate. A simple missing document or misstep can upend your efforts to terminate a guardianship. It’s in your best interest to have a determined and compassionate attorney who works in the family courts on a daily basis. That experience allows us to put forward the best case possible on your behalf and get the results you deserve. If you are considering terminating a guardianship, call Lilac City Law and schedule a consultation today.

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What is a Ward of the Court?

What is a Ward of the Court?

People essentially become wards of the court because they are unable to take care of themselves at some level and require certain legal protections.

This legal designation is also commonly called being a “ward of the state” and may apply to minors as well as adults. It’s also important to understand that a ward is not necessarily someone who has no family or support system within the community. Rather, they may require enhanced protections beyond what a legal guardian or family can provide. Other salient issues involve otherwise responsible legal guardians not wanting to bear the sometimes onerous financial burden associated with minor children or adults who unable to maintain self-care.

To say that the process and issues involving wards of the court are complicated would be something of an understatement. In an effort to provide loved ones with a working understanding of what it means to be a ward of the court, we hope the following overview proves useful.

How Does One Become an Adult Ward of the Court?

As we are acutely aware, not all adults have the ability to care for themselves adequately. Whether that stems from a disability, age, or illness, the courts can provide enhanced protections to ensure ongoing treatment, care, and financial oversight, among other items.

An adult ward of the court may have no remaining family members to step up as a legal guardian. Others may indeed have loved ones that are willing to act as their guardian but are not necessarily in a position to shoulder burdens such as financial support as well as caregiving. Still, other wards have court-appointed guardians connected with government agencies. These professional organizations may include the following.

  • Social Services
  • Human Services
  • Mental Health Agencies
  • Health Departments
  • Departments for Aging Adults

In order to become an adult ward of the court, that person must undergo a review process that may include assessments by medical and psychiatric professionals who support a claim the person is not competent to successfully maintain minimum health, safety, and financial standards. In the vast majority of cases, the courts will hold a hearing and secure written and oral testimony from experts, friends, and family members, among others. If deemed incompetent, the individual may enjoy the legal protections afforded by the court.

It’s also important to keep in mind that the courts do not necessarily impose guardianships. People who recognize they are seeing the signs of diminished capacity to maintain their health, well-being, and estates, can work with an attorney to voluntarily petition the court. In these instances, the potential ward of the court can have substantial input about the parameters of the guardianship and who the court appoints to that station.

In other cases, a friend or family member can petition the court on someone’s behalf, even in cases of involuntary guardianships. These cases can be emotionally taxing for family members, particularly when your loved one does not recognize their failing state. In these involuntary cases, the ward generally has little or no input about issues such as oversight of their well-being or the designated guardian. The court imposes what it believes is in the best interest of the ward.

What Does an Adult Guardian Do?

A court-appointed guardian is often tasked with overseeing healthcare and financial planning decisions. It’s not uncommon for the guardian to work closely with the ward through the process and move forward with the person’s full consent. These are common items a guardian works with the ward.  

  • Place of Residency
  • Mental Health Treatments
  • Physical Health Treatments
  • Bill Payments
  • Personal Affairs
  • Estate Planning
  • Last Will & Testament

If the ward has significant financial resources, the court may also appoint a conservator with some expertise to manage their estate. The guardian, on the other hand, advocates on behalf of the ward’s best interest in all other matters and generally submits periodic reports to the court.

How Long Can an Adult Remain a Ward of the Court?

Once a person has been deemed a ward of the court, that legal designation is usually only removed in the event they are no longer hindered. In some instances, the court may dismiss the guardianship because it’s in the person’s best interest. Although the latter tends not to be the norm, people who have recovered from a physical or mental health condition may see the ward designation lifted, and the guardianship discontinued. In the overwhelming majority of cases, wards of the court remain so until they pass away.

When Does A Minor Child Become A Ward of the Court?

When children are deemed wards of the court, the circumstances and prevailing issues can be quite different. For example, when the court appoints a legal guardian, it is more often not the case that they become financially responsible for support. In these cases, guardians are also not generally liable for other expenses associated with the child. However, when children become wards of the court, parental rights are usually terminated.

This is an important distinction for minors and parents alike to understand. That’s because there are instances when the court may assume authority over the child even though the minor remains in the custody of a parent. In this scenario, the court has asserted some degree of authority but has not yet gone as far as to remove parental oversight. In such cases, minors are not necessarily a legal ward of the court.

That same reasoning holds true in cases when minors work with an attorney to successfully petition the court to be declared emancipated. Although such minors are no longer under the legal control or protection of a parent or guardian, they are not automatically under the court’s protection either. Therefore, they do not meet the legal standard of a ward of the court.

Another compelling situation is when minors commit crimes and are incarcerated. The mere fact that the state has assumed control and placed the child in a correctional facility does not necessarily make them a ward of the court. As long as a parent or appointed guardian is in place, the minor may not be considered a ward.  

What Triggers A Minor Becoming a Ward of the Court?

Like the adult process, there are a number of ways that a child can go from being the responsibility of a parent to a ward of the court. Sadly, ranked among the more prevalent pathways, the court places children under its protection when they are neglected, abused, or otherwise mistreated. We hear and read about many extreme cases in the media of children being subjected to squalor, malnutrition, and other horrors. The legal protections of the court are often inserted until the children can be treated, and a suitable living environment can be secured.

In other cases, the court may proactively take control over wayward youths. It’s not unusual for a minor with a growing criminal record, history of drug and alcohol abuse, or mental health issues to be removed from a parent’s custody. Wards may be placed in institutional settings that include rehabilitative programs. The court’s goal in cases of wayward youths is to redirect negative behaviors and integrate them as productive members of the community.

There are also cases when parents are physically or mentally unable to provide the stable homelife a child requires. Whether that evolves from diminished physical health or an emerging mental condition, parents have the option to work with an attorney and petition the court to place their child under its protection. Parents are often required to sign over custody in voluntary petitions. In these types of cases, parents can have significant input regarding placement and the future well-being of their child. It’s also not unusual for parents to regain their capacity to care for a child and ask the court to reinstate their rights.

Protect Your Loved One’s Rights & Interests

If you or a loved one is facing the possibility of becoming a ward of the court, or you fear for how guardianship will transpire in a known or unknown future scenario, it’s imperative that you engage the best legal counsel possible. The legal hurdles, hearings, and documentation required to negotiate the process tend to be highly complicated. And, missteps can cause unexpected setbacks and a less than desirable result. Whether you are considering an adult wardship, or want to protect a minor child’s future, Lilac City Law has the experience and compassion to diligently guide you through the process and get the outcome you deserve.

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What is a Plenary Guardian?

What is a Plenary Guardian?

If you have a teenage child or young adult child with an intellectual or developmental disability (IDD), you may have concerns over how they will navigate the world as an adult. You may be wondering whether you need to assume legal guardianship to protect them from potentially costly mistakes. It is only sensible to think about whether or not they may need your help in making important life decisions moving forward. That is why it is important to learn more about different types of guardianship. The more you learn about the legal avenues that are available to you, the better you will be able to decide what is best for your child.

What is Plenary Guardianship?

Plenary guardianship is the official legal term for full guardianship. It is the most complete form of guardianship that can be granted by the court — where you take full decision-making responsibility for your child.

Deciding to seek full guardianship for your child is a major choice that should not be made lightly, as it will remove all of your adult child’s legal rights to make major life decisions. The last thing you want to do is lower their quality of life, so you will want to discuss the possibility of plenary guardianship with multiple key figures in your child’s life to ensure you are completely certain about your decision. These figures may include your special needs lawyer, the child’s other parent, your child’s primary physician and other medical experts. Not only will these experts help you decide what your child really needs, they can also help you present a complete argument to the court if you find you need to seek plenary guardianship.

If you do get plenary guardianship from the court, you will take over responsibility for some or all of your child’s major life decisions, including:

  • Voting
  • Driving
  • Marriage
  • Divorce
  • Medical decisions
  • Financial decisions
  • Entering into contracts
  • Living arrangements
  • Creating a will

There are definitely individuals with such a severe IDD that they require plenary guardianship. For those individuals, plenary guardianship is a necessity for their safety and those around them. But it is also important to understand that plenary guardianship is often not necessary. Just because someone has an IDD, even a fairly significant IDD, does not mean that they should have all of their rights taken away and put in the hands of someone else — even someone as well-intentioned as their parent.

Why Do Parents Seek Plenary Guardianship?

The primary reason for plenary guardianship is to ensure the safety of the individual under guardianship. An IDD can be so severe that it can make an individual vulnerable to dangerous decisions and/or being taken advantage of by others. You want your child to live a relatively safe, comfortable, secure life. If you are certain that having full rights to get married, divorced, drive, enter into contracts, make medical decisions, make financial decisions, and so on, is likely to put your adult child in significant danger, it may be necessary to take away those rights.

How to Decide if Plenary Guardianship is Necessary

Seeking plenary guardianship for your adult child with an IDD or soon to be adult child is one of the biggest decisions you will ever make. You love your child and want what is best for them — and that may mean taking over some or all of their decision-making through full guardianship. But how do you decide if plenary guardianship is the right choice?

There is no simple, easy answer to this question. But there are some questions you can ask yourself and other experts like your special needs attorney that can help guide your decision, including:

  • Is your child completely incapable of making health care or financial decisions? Decisions like whether to get a life-saving surgery, take birth control and pay rent are extremely important choices that adults must make for their own well-being. If you do not believe your child is capable of making such decisions, you may feel compelled to take over such decisions to ensure their safety. 
  • Can your child make some major decisions with reasonable — or even extreme — assistance or accommodation? Many young adults with an IDD are capable of making some major decisions, particularly if they have some help from others that they can trust. It is far better to err on the side of caution when it comes to taking away your child’s rights to make their own decisions both for their happiness and your own. 
  • Is there a less extreme legal option you can utilize other than plenary guardianship? Plenary guardianship is considered the most drastic choice because it fully removes the rights of your child and puts them in your hands. There may be other options, like limited guardianship or power of attorney, that would allow you to provide adequate protection without the need to take away all your child’s rights. 

Alternatives to Plenary Guardianship: Limited Guardianship

If after careful consideration you determine that your child is unable to make some decisions safely due to their IDD, but not all, you could seek a limited guardianship. As the name implies, a limited guardianship is granted to address specific limitations the individual with an IDD may face. For example, if you know that your child is not capable of making sound financial decisions but is capable of making other major decisions like driving or choosing a life partner, you could seek a limited guardianship for financial matters. 

Alternatives to Plenary Guardianship: Power of Attorney

A power of attorney is even less restrictive than a limited guardianship. It grants you the power to make specific decisions on behalf of your child, such as health care decisions or financial decisions. You could get a power of attorney to help in the areas where you know you are needed without having to go through the extensive process of getting guardianship. 

Remember — The Court Will Err on the Side of Caution

As you are making your decision about what type of guardianship or legal option you want for your child with an IDD, it is important to keep the priorities of the court in mind. Generally, courts are averse to taking away any more of an individual’s rights than they have to. You are going to have a much harder time convincing a court to give you plenary guardianship than you would limited guardianship. Power of attorney will be easier to get than limited guardianship. 

Of course, if you are absolutely certain that plenary guardianship is necessary and you and your attorney can provide sufficient evidence and a compelling argument, you will likely be granted full guardianship. 

Trust Your Judgment and Don’t Be Afraid to Ask for Help

You know your child better than anyone — which means you are the best-equipped to determine what kind of help they need as they come into adulthood. However, since the question of plenary guardianship is so significant, you should not be afraid to seek help as you make your choice. Your family physician, any specialists your child sees, and your special needs attorney have likely all encountered similar situations with other patients/clients. They can give you some insight that will probably make you feel better about your final decision. They can tell you about examples they have seen of full guardianship, experiences of adults with IDDs, information about the legal hurdles you may face and more. 

In the end, it will be up to you whether you choose to seek plenary guardianship, limited guardianship, power of attorney or some other avenue to protect your adult child with an IDD. But you will likely feel better having consulted with experts before you finalize your decision. 

Getting Help with Guardianship Decisions

For parents of children of with an IDD, the approach of their 18th birthday can bring mixed feelings. On the one hand, you know it is a joyous occasion that your child has reached one of the great milestones of life — as with every new 18-year-old, they gain the right to vote, to marry, to become part of the armed forces and to move out on their own. But the reality of their IDD could give you serious hesitation about leaving them to their own devices. You know better than anyone how capable — or incapable — they may be to make significant life decisions. You want to protect them, and you may need to take legal action to do so.

At Lilac City Law, we understand how difficult it can be to decide questions of guardianship for an adult child with an IDD. We want you to know that you do not have to go through this process alone. We are committed to helping our clients find the best available option for their children and their own wellbeing. We can help you decide if full guardianship is the right choice for your child and we can help you seek guardianship from the court.

If you have questions about plenary guardianship and your other options for protecting your adult child with an IDD, please reach out to us using the contact form below or just give us a call. It is our mission to help you protect your family, and we are ready to assist in whatever way we can. 

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How To Prevent My Child from Becoming a Ward of the Court

How To Prevent My Child from Becoming a Ward of the Court

If something happens to you and you’re unable to care for your children, the court system may step in. Making a child a ward of the court is only a last resort. If you’ve already made other arrangements, the court system would prefer to honor those arrangements as long as they account for your children’s best interests.

What is a Ward of the Court?

A ward of the court is a child who is under the care of the court system. The court monitors the child’s education, healthcare, finances, and other needs. The court may appoint a guardian for the child, or the child may be placed into foster care.

When Can a Child Become a Ward of the Court?

A child can become a ward of the court when their parents are unable to care for them. This can happen involuntarily in cases of abuse or neglect. In an estate planning context, it may be due to the death of the parents or an incapacitating illness or injury.

This process isn’t ideal for the children or their families, so it’s only used as a backup plan. If there are other arrangements, such as a nominated guardian who has the financial ability to care for the child, the court would rather entrust the care of the child to that person under the court’s supervision rather than having the state take responsibility for the child.

What Happens if Something Happens to the Parents?

If a child’s parents suffer a sudden accident or injury, a number of legal processes will begin. If the parents never return to pick up their children at school or some other location, the adults there will try to reach the emergency contacts the parents previously provided. If they can’t reach any family members or friends to take temporary care of the child, they may notify police or child protective services.

While the preferred option is to get the children with someone they know as quickly as possible, that is only a temporary solution. Without prior planning by the parents, they won’t have the legal authority to make important decisions for the children or even to maintain custody without a separate court process.

If there is no one willing or able to take care of the children, they may be brought to a shelter or placed into foster care.

Can a Parent Stop a Child from Becoming a Ward of the Court?

If you’re charged with abuse or neglect, you have due process rights to protect your parental rights and can work with an attorney who practices in that area to maintain custody. If you die or become incapacitated, it’s simply impossible to go to court and fight for your children. Since it’s this latter scenario that you’re trying to prevent through estate planning, the only way to prevent your child from becoming a ward of the court is to plan ahead.

How to Decide Who Takes Care of Your Children

If you want to decide who takes care of your children instead of having a court do it, there are a few steps you need to take.

Update Your Emergency Contacts

Schools, daycares, and anyone else who takes care of your children for the day will usually ask for a list of people who are authorized to pick up your children. This should include who should pick them up in an emergency when you can’t be reached. Your children should also know the name and phone number of a relative or close friend to call in an emergency.

Keep in mind this is just a temporary arrangement. Even if your selected person is willing to care for your children indefinitely, they won’t have legal authority to make decisions for them at the doctor, school, bank, or other important places.

Nominate a Guardian

A more permanent solution is to nominate a guardian. A guardian takes full care of your children with the same authority of a parent. While the court technically selects the guardian, it will honor a parent’s wishes as long as the nominated guardian is suitable. If your chosen guardian lives out of state, you may wish to also nominate a local temporary or backup guardian until the permanent guardian can arrive or your family can arrange for the children to move to the permanent guardian.

Create a Power of Attorney

You can also create a power of attorney for your children. This is similar to a guardianship in that you can grant your selected agent full authority to do anything you could, but it’s more temporary. A power of attorney can help in cases of temporary illness or if something happens to one parent while the other is traveling away from home.

Appoint a Conservator

A conservator is similar to a guardian but only handles financial affairs while another guardian handles everything else. Some parents worry about a guardian misusing assets the parents left for their children’s benefit. While courts do monitor guardians, some financial abuses can go unnoticed by the court if another family member isn’t aware to bring it to the court’s attention. Appointing a separate conservator provides a more direct form of oversight.

How to Provide for Your Children Financially

When courts are reviewing who will care for children, they consider financial means. A family member who you would like to be the guardian may not have the income or assets needed to raise your children. While the guardian generally doesn’t legally have personal liability for childcare expenses, your children do need some source of money in order to not become wards of the court. You have several options to achieve this.

Life Insurance

Life insurance is one of the easiest ways to provide for your children. You can buy a policy that covers your future earnings or what you would have spent to raise them including college costs. You can name your children as beneficiaries, or have the money go into a trust on their behalf.

Will

You can also use your will to leave money to your children. Creating a will is a simple step, but it isn’t without pitfalls. A will has to go through probate, and if you have debts, your creditors may be entitled to repayment before your heirs receive anything. A will also provides the lowest degree of control over how the money you leave is spent.

Trust

A trust with your children as the beneficiary holds assets to your benefit during your life and then automatically transfers them to your children upon your death. Some of the major benefits of using a trust are that you can set it up to hold money until your children reach a certain age or to be used for a specific purpose.

Durable Financial Power of Attorney

You should also prepare for a long-term illness or other incapacitation. Life insurance, wills, and trusts only work after death. If you are still alive, your family will need the legal authority to access your funds to use for your children.

A durable power of attorney kicks in on a triggering event you specify such as your hospitalization. You can give your power of attorney access to your checking account, or you can maintain a separate savings account with funds for your children in case of an emergency. To the extent you have funds available, this guarantees money will be available for your children regardless of your family’s willingness or ability to cover their expenses.

What Do You to With Your Plan?

Once you have a plan in place, make sure the right people know about it. Keep copies of everything with your other important documents, and tell your family where to find them. Anyone you select to care for your children should have their own copies to present to legal authorities if needed.

In addition, give age-appropriate information to your children. This can be as simple as telling a toddler to call grandma if you don’t answer or telling an older child their uncle will take care of them if anything ever happens to you. After a certain age, this can actually be comforting to children who may have seen movies about orphans and have their own worries about becoming wards of the court.

Get Help from an Attorney

Preventing your child from becoming a ward of the court requires proactive planning. To make sure you don’t miss anything and everything will work as you expect, talk to an estate planning attorney at Lilac City Law. Contact us now to schedule a consultation.

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Tenancy By the Entirety in Idaho Explained

Tenancy By the Entirety in Idaho Explained

When you’re married in Idaho, real estate and other property you acquire during the marriage is community property equally owned by the spouses. If one spouse dies, community property will usually pass to the other spouse, but there may be some special situations. You may also need to plan for separate property. A tenancy by the entirety is a common estate planning tool for married couples, but you’ll need to take a slightly different approach in Idaho.

Idaho Succession Rules When a Spouse Dies

When one spouse dies without a will (or with property not covered by a will) and leaves a surviving spouse, there are three possible outcomes under Idaho intestate succession laws.

  • With descendants: 100% of community property and 50% of separate property to surviving spouse. 50% of separate property to descendants.
  • With parents (no descendants): 100% of community property and 50% of separate property to surviving spouse. 50% of separate property to parents.
  • No descendants or parents: 100% of both community and separate property to surviving spouse.

These default rules may or may not be your intended outcome. For example, your home may be separate property because one spouse bought it before marriage or inherited it, but you may still want 100% of your home to go to your spouse instead of being divided. You may also wish to leave all or part of your share of community property to someone else.

You can achieve virtually any desired outcome using a will or other planning tools. You have the right to determine the disposition of your property including all separate property and your half of community property. It is often a good idea in a healthy marriage to discuss this with your spouse, but you have no legal obligation to do so unless you’ve entered into a separate legal arrangement.

What Does a Tenancy by the Entirety Do?

A tenancy by the entirety is a special way of holding title to a house or other property. It includes the following benefits and restrictions.

  • Both spouses own the property as a whole. They do not have individual control or property rights in “their half.”
  • A tenancy by the entirety can terminate by mutual agreement, death, or divorce.
  • Upon the death of one spouse, the property automatically passes in full to the other. It does not go through probate.
  • Individual creditors of one spouse generally can’t pursue a claim against the property.
  • An individual spouse can’t sell all or a portion of the property, or grant any type of interest in the property, without the consent of the other spouse. This includes using the property as collateral for a loan.

Does Idaho Recognize a Tenancy by the Entirety?

Idaho law does not recognize tenancies by the entirety. An Idaho bankruptcy court held that when a couple tries to establish a tenancy by the entirety, the jointly owned property is still subject to claims by each owner’s individual creditors (In re Antonie, 432 B.R. 843, 851 (Bankr. D. Idaho 2010)).

An Idaho ownership interest labeled as a tenancy by the entirety would typically actually be a joint tenancy with right of survivorship under the law. Tenancies by the entirety created in other states would also typically be treated as joint tenancies with right of survivorship if they now fall under Idaho jurisdiction (for example, the spouses moved from another state).

What is a Joint Tenancy with Right of Survivorship?

A joint tenancy with right of survivorship is similar to a tenancy by the entirety. Here are the key differences.

  • The owners can be anyone, related or unrelated, rather than just spouses.
  • Each owner has an equal share of ownership and full rights to use the property.
  • The right of survivorship means that if one owner dies, their interest passes to the other owner(s). The deceased owner’s heirs have no right to any share in the property or compensation for that owner’s share. For a married couple, the surviving spouse becomes the sole owner.
  • A joint tenant can sell or transfer their interest in the property without the consent of the other owner(s). This would change the ownership to a tenancy in common (no right of survivorship).
  • An individual owner’s creditors can make a claim against the property and force a sale.

What are the Downsides of a Joint Tenancy with Right of Survivorship?

The major downside of a joint tenancy with right of survivorship is the lack of protection against creditors. If one spouse has individual debts, from before the marriage or otherwise, the other spouse could also lose their home.

You may also have concerns about each spouse having unilateral control over their ownership interest. While they can’t sell the entire house without your consent if your name is on the title, such a move could potentially harm your ownership value.

What is a Tenancy in Common?

A tenancy in common is another way of owning property that doesn’t have special restrictions or protections. Each owner owns an equal share unless otherwise specified.

What if the House is Community Property?

If the house is community property and not held in any special form, it may still function similarly to a joint tenancy with right of survivorship. For this to work, the deceased spouse can’t have willed part or all of their share in the home to someone else. If you have concerns about this or over fairness when one spouse has large individual debt, you may wish to consider a prenuptial agreement or making alternative arrangements in your estate planning documents.

What if the House is Separate Property?

If the house is separate property and not held in any special form, it depends on whose separate property it was.

  • Separate property of deceased spouse with descendants or parents: The surviving spouse and descendants/parents each take half an ownership interest in the house. They would need to either agree on living arrangements or sell the house.
  • Separate property of deceased spouse without descendants or parents: The surviving spouse takes a full interest in the house.
  • Separate property of surviving spouse: The house was and remains the property of the surviving spouse.

If these are not your desired outcomes, you can use a joint tenancy with right of survivorship to guarantee that your spouse will become the sole owner. You can also use a will or other planning tools to do things like allow your spouse to live in the house for life before someone else inherits the house or to leave all or part of the house to someone else.

What About Other Property?

You can hold other property besides a house in a joint tenancy with right of survivorship. This can include bank accounts, brokerage accounts, or other assets. The joint tenancy with right of survivorship would work similarly to how it would for a house.

Can a Will or Trust Override a Joint Tenancy with Right of Survivorship?

A will or trust can only transfer what you own. The reason that a will can leave community property to someone other than your spouse is that you have the right to choose what to do with your half of the community property.

When you enter into a tenancy by the entirety or joint tenancy with right of survivorship, you agree to give up interest in the property on death. Therefore, the property skips probate, and your will or trust is disregarded.

Is it Hard to Create or End a Joint Tenancy with Right of Survivorship?

If both spouses are in agreement, buying property to be held as a joint tenancy with right of survivorship is essentially a matter of writing down the magic words when you buy the property. Similarly, all it takes to sell the property or change to a different form of ownership is for both spouses to sign off. If one spouse dies, the surviving spouse only needs to provide a death certificate to become sole owner.

Filling out the forms is only a small fraction of your lawyer’s job. The real challenge is making sure you hold the property in the right form of ownership for your family.

Schedule a Consultation with an Estate Planning Lawyer

If you’re considering a tenancy by the entirety or other options, talk to an estate planning lawyer about what’s right for you. Schedule a consultation with Lilac City Law now.

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12 Months of Estate Planning: A Plan to Get Your Estate Plan Set up in 2020

12 Months of Estate Planning: A Plan to Get Your Estate Plan Set up in 2020

Estate planning can be one of the most important things you do for your family’s future, but it can also be overwhelming. Between heavy subjects you don’t want to think about, the need to do a lot of paperwork, and everything else going on in your life, it can be too easy to keep putting off your estate plan until later. The problem is you never know when you will need it. Get started before it’s too late by doing just a little bit at a time.

January: Determine Your Goals

Who do you need to take care of? Do you have a spouse that relies on your income? Children that still need an education? Grandchildren that you want to give a head start in life? Charities or other important causes that you wish to support?

Your estate plan isn’t a chore you have to check off to be a responsible adult. It’s something you want to do to achieve your goals. There are many types of estate planning tools available that work best in different situations. To pick the right tools, you need to begin with a plan for what you want to do — just like drawing up the blueprints for a house.

February: Take Inventory

After you know who you want to support, you need to know how you can. What assets do you have? Your home? Cash savings? Investments? A business? Family heirlooms?

When you divide your estate, you may wish to provide some loved ones with financial support and others emotional support in the form of specific items that will mean more to them. It’s also important to understand that if you have any debts, your creditors will take precedence over your heirs, so you need to account for those as well.

March: Create a Will

Wills are the most common estate planning tool because they are the simplest way to ensure that each of your loved ones is cared for in the way that you’ve chosen. You can create a will on your own, but there are some legal technicalities that could leave your will open to challenges or having some of your wishes not honored. An estate planning attorney can help you avoid those complexities. Even if you plan to use other estate planning tools, having a will is still a good catchall for things that may not otherwise be covered.

April: Name Beneficiaries

When you name beneficiaries on your bank accounts and investment accounts, those accounts automatically go to your chosen beneficiaries upon your death. This allows those beneficiaries to receive financial support without having to wait for your will to go through probate.

The main benefit to taking this step is so that any family members who need immediate financial support can receive it. For example, if they relied on your income to cover their living expenses, they may not have enough money to buy groceries or to make rent or mortgage payments on your home that they continue to live in.

May: Consider a Trust

A trust is another way to keep assets out of probate and transfer them directly to family members. Again, the goal is to skip the weeks or months of delays it takes to execute your will in probate.

A trust can also be used to ensure that the funds you leave go towards your intended purpose. You may leave a trust for your spouse’s living expenses or your children’s schooling. You may also restrict your children’s or grandchildren’s access to their inheritance until they are older and wiser and will hopefully put it to good use.

June: Plan for Your Healthcare

In addition to planning for what happens after you’re gone, you also need to have plans for what happens if you can’t make decisions for yourself while you’re hospitalized for a serious accident or illness. Even in close families, family members may disagree about what you want, and doctors may not be able to legally follow their instructions.

To ensure your wishes are honored, consider a living will, advanced healthcare directive, or medical power of attorney. These documents allow you to designate a trusted loved one to make decisions on your behalf with full authority. You can also include any specific treatments or end-of-life options that you want your agent to request on your behalf.

July: Designate a Financial Power of Attorney

Like the person you select to make your healthcare decisions, your financial power of attorney will step in if you’re unable to manage your finances. A full durable financial power of attorney gives your agent the ability to manage your bills and assets if you’re ever temporarily or permanently incapacitated.

You can also use a financial power of attorney when you’re still able to care for yourself to some degree but need extra help with certain tasks. For example, you might sign a limited scope power of attorney allowing a loved one to manage your checking account and pay your bills.

August: Look Into Life Insurance

Life insurance is another tool you can use to provide for your family financially when you’re unable to. Many working people opt to buy a policy large enough to replace their expected future income to protect their spouse’s and children’s lifestyles that were planned around that income. You can also use life insurance to guard against things like medical debts from reducing what you can leave to your family.

As with your other assets, you will need to name one or more beneficiaries in your life insurance policy or provide for the cash value of the policy when you write your will.

September: Plan for Estate Taxes

Estate taxes generally only affect families with multi-million dollar net worths, but you still need to be aware of them. Estate taxes can be particularly devastating when your net worth is mostly in real estate, a business, or other non-liquid assets. This type of situation often forces a family to sell a treasured home or multi-generational business to pay the tax bill. By planning how you structure your estate ahead of time, you can avoid taxes or at least make sure your family will have the ability to pay them.

October: Protect Your Business

In one sense, a business is like any other asset. You can leave it in your will to a loved one, or it can be part of your general estate to be divided up between your heirs.

However, businesses also have to be maintained if they are to continue to provide for your family. The death of an owner or key employee can be highly disruptive to the business and possibly even put it out of business. You should create a succession plan that provides for continuity of operations no matter what happens and that also gradually prepares your loved ones to follow in your footsteps if that’s your goal.

November: Organize Everything

Your estate plan is no good if no one knows about it to put it into action. Keep all of your important documents together in a fireproof safe that your family knows the location of. You may also wish to leave copies with your attorney or in a bank safe deposit box. Again, tell your family.

When you have a medical power of attorney or financial power of attorney, give copies to your doctors or banks in advance. Don’t forget to give them updated documents if you change or cancel your existing plans.

December: Review Everything Each Year

When you stop to reflect on another year gone by, think about how the changes during the year will affect your family’s future. New children may be born, others may grow up and no longer need as much help, and you may have new wealth to consider. While you don’t need to redo your estate plan every year, you should update the relevant portions of it after major life changes so that it continues to meet your goals for your family.

Estate Planning with Lilac City Law

Lilac City provides a full range of estate planning services and can help you develop a comprehensive plan for you and your family. We can help you put it together over the next year or help you get it done even faster. To learn more, contact us now to schedule a consultation.

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What Do I Need to Know about a Power of Attorney in WA State?

What Do I Need to Know about a Power of Attorney in WA State?

A power of attorney gives a loved one the legal authority to handle your healthcare, financial, or other important decisions for you if you’re unable to. This can help you both during major life events when you need extra help or if you’re physically or mentally unable to make decisions on your own.

What Exactly is a Power of Attorney?

A power of attorney is a legal document that grants the named person the power to take the actions you list in the document. Doctors, financial institutions, schools, and others honor instructions from the power of attorney as if they were coming from you. Without this document, they would usually be legally bound to ignore the power of attorney’s instructions even if they believe that’s what you would want.

A power of attorney is not actually an attorney and doesn’t have to be a lawyer. It can be anyone you trust. The name just means they have similar powers to what you might grant to an attorney.

What Does a Power of Attorney Cover?

A power of attorney can cover virtually all decisions, or it can cover one specific action. What you include is up to you. Power of attorney powers might include the following.

  • Healthcare decisions
  • Care of your children
  • Paying your bills
  • Managing your finances, including selling assets or investments to cover expenses
  • Operating your business
  • Making decisions in litigation on your behalf (similar to how you would instruct an attorney rather than the actual legal work)

What Form Does a Power of Attorney Need?

You can find many templates and examples, but there is no specific form to use. The power of attorney just needs to be clear that it’s a power of attorney, name who you’re choosing as your agent, and list the powers you’re granting that person. It’s preferable to have it notarized so that there’s no question about its validity. You can sign in front of two witnesses rather than a notary if you need to.

What is a Durable Power of Attorney?

A durable power of attorney is a power of attorney that lasts even if you’re incapacitated due to illness or accident. Not all powers of attorney are durable. For example, someone working abroad may designate someone to manage their affairs back home without making the power of attorney durable.

A power of attorney that isn’t durable terminates on your incapacitation. To be durable, the form must include your intent that it be durable.

What Do You Do With a Power of Attorney?

Your agent will need to present the power of attorney form to prove that they’re authorized to act on your behalf. You should keep at least one copy for yourself with additional copies located wherever you have copies of your other important documents. This allows your family to be aware of the power of attorney if something happens to you.

Can You Cancel a Power of Attorney?

You can cancel a power of attorney at any time for any reason. You just need to notify your agent. You may also wish to notify anyone that your agent was working with if you wish to make sure they no longer honor your agent’s instructions.

How Long Does a Power of Attorney Last?

A power of attorney might be indefinite, last for a specific amount of time, last until something happens, or only cover a specific action or event. You decide this when you create your power of attorney. No matter which option you choose, you still retain the right to cancel it early.

In the case of a durable power of attorney, it will be in effect from the time a physician or court declares you are incapacitated and last until death. You can cancel it if you recover and are competent to do so.

What Happens to a Power of Attorney When the Principal Dies?

If you die, your agent’s powers cease when they learn of your death. A power of attorney cannot be used to handle your estate even if you try to include that in your power of attorney. You would need to rely on a will or other planning documents.

What Must a Power of Attorney Do?

A power of attorney must act in your best interests. They cannot use your funds for their own benefit. When authorized to make medical decisions, they must follow your wishes as they understand them even if they would choose a different course of action.

What Can’t a Power of Attorney Do?

There are several things that you can’t include in a power of attorney under Washington law. These include several very important medical and legal decisions.

  • Medical: Amputation, shock therapy, life support decisions, or institutionalization. You’d need an advanced healthcare directive instead.
  • Financial: Changing life insurance beneficiaries, modifying a community property agreement, or making monetary gifts unless these actions are specifically included in the power of attorney. Modifying a will or voting in elections can never be included.

What if there is a Disagreement Over a Power of Attorney?

Your agent must follow your instructions, and you can remove your agent at any time. In case of a durable power of attorney where you’re incapacitated, your family can petition a court to invalidate the power of attorney or to force the agent to act in accordance with the instructions in the document.

Is an Out-of-State Power of Attorney Valid?

Most states will honor a power of attorney from another state at least on a temporary basis. If you become a resident of a new state, you should make sure your power of attorney meets the requirements for that state.

What if a Power of Attorney Names Two Agents?

A power of attorney may name one or more agents. If you name multiple agents, they must act jointly and agree on all decisions. You can also allow them to act independently, meaning each can act without input by the other(s), if you specifically state this in your power of attorney.

What is the Difference Between a Power of Attorney and a Living Will?

A living will or advanced healthcare directive spells out what major medical decisions you’d want made on your behalf. These documents are used by your doctors and others to understand your wishes.

A power of attorney’s main job is to designate a specific person you want making decisions for you rather than the specific decisions to be made. While you can limit those decisions in the power of attorney, keep in mind the medical decisions that a power of attorney can never make by law.

What is the Difference Between a Power of Attorney and a Guardianship?

A guardianship has a higher level of responsibility and decision-making than a power of attorney. A guardianship must be approved by a judge, and the guardian must provide periodic updates to the court. A power of attorney only needs the proper forms.

What is the Washington Uniform Power of Attorney Act?

The Washington Uniform Power of Attorney Act was a 2017 law that added safeguards to prevent abuses of powers of attorney. Many of the restrictions and requirements described above were added as part of this act. While you may see references to the Washington Uniform Power of Attorney Act, this is just a formal way of describing the laws that routinely govern powers of attorney.

When Should You Update Your Power of Attorney?

There are several situations where you may need to update your power of attorney.

  • You or your agent have moved, and the distance makes the arrangement impracticable.
  • The agent is no longer willing or able to assume the duties, or you no longer want them to.
  • Your life circumstances have changed and you need to agent to assume different responsibilities.

Do You Need an Attorney to Draft a Power of Attorney?

There is no legal requirement to have an attorney draft your power of attorney. However, a power of attorney confers important legal responsibilities, and you may want to have an attorney confirm that your power of attorney will do everything you want it to with no unintended consequences. Your attorney can also help you avoid technical mistakes that might result in a challenge to your power of attorney. To get help, talk to Lilac City Law today.

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