What to Know During the Guardianship Nomination Process

What to Know During the Guardianship Nomination Process

If something happened to you and you were unable to take care of yourself or your children, who would step in? Ideally, it would be someone you chose. Nominating a guardian before something happens allows you to do just that.

What Is a Guardian?

Think back to school forms asking for a parent or legal guardian. A guardian is a person who takes care of someone else when that person is incompetent to handle their affairs on their own. This could be due to a serious injury or illness. When minor children are involved, they may need a guardian if both of their parents are incapacitated or pass away.

A guardianship will generally cover similar decisions to what a parent could make for a child — even when the person needing a guardian is an adult. This may include medical decisions and, for minors, other life decisions such as where to go to school.

Guardianships can also cover managing the person’s finances, but finances are sometimes broken up into a separate conservatorship. Exactly what a guardian or conservator can do will be spelled out when the court approves the guardianship or conservatorship.

How Is a Guardian Different From Godparents?

When your children were born or shortly after, you may have appointed godparents. Godparents are often expected to step in and take charge of the children if something happens to a parent, but appointing a godparent is largely a religious or ceremonial action. Godparents aren’t directly recognized under the law.

To give a godparent the legal authority to act, and avoid conflicts with other family members who may wish to step in instead, you will need to go through the legal process of appointing the godparents as guardians, trustees, or other legal roles.

How Is a Guardian Different from a Power of Attorney?

A power of attorney might grant all of the powers that a guardian can exercise. The difference is mainly timing. You sign a power of attorney when you have full mental capacity. A guardian is only appointed after you’re incapacitated. Part of the guardianship appointment process can include reviewing the wishes you specified when you still had full mental capacity. However, a power of attorney cannot be executed if you have diminished mental capacity, and it may be voided if a court finds you lacked capacity when you signed it.

Because a power of attorney can be limited in scope based on how you had your lawyer word it, it may not cover all of the actions that need to be taken on your behalf. In those situations, a guardian would be appointed to fill in the gaps.

How Do You Select a Guardian for Yourself?

Like a person dying without a complete will, the law has default rules for how to select a guardian based on relationships and willingness to serve. The court will also consider the ability to do the job of each person who wants to be the guardian. This can lead to serious family conflicts and large legal bills when two family members wish to serve as the guardian and can’t come to an agreement.

To avoid these types of problems, you can nominate a guardian. The judge isn’t bound to follow your nomination but will give it great weight and will only overrule your nomination with a strong cause. The process is called nomination of guardian, and you can select any adult of sound mind. Like a will, the judge will review your selection to ensure you were mentally fit to make the decision and weren’t under duress or tricked into doing so.

How Do You Select a Guardian for Your Children?

The process for nominating a guardian for your children is similar to nominating a guardian for yourself. The only real difference is that it’s even more important to make your decision in advance so that your children can have a sense of stability and not be left hanging during long court battles.

You should, of course, also talk to potential guardians to see if they are willing to take on this responsibility. However, being nominated does not obligate the person to accept the judge’s appointment if the time ever comes. Therefore, you probably want to select at least one alternate.

Do You Need a Guardian If You Left a Trust for Your Children?

You may have set up a trust to provide for your children financially in case something happened to you. The trustee is then able to manage their financial affairs in accordance with the trust.

However, someone still needs to take custody of the children to manage their daily lives and important life decisions. This is where you need to nominate a guardian, and your estate planning documents should lay out the responsibilities of both the trustee and the guardian.

Who Supervises a Guardian?

Once appointed, a guardian must make regular reports to the court. This includes financial information as well as other major decisions. Other family members can also go to court to contest the guardianship if they believe the guardian is doing something improper.

What If There Is a Conflict Between a Guardianship and a Power of Attorney or Trust?

There should be no conflicts with a guardianship and power of attorney or trust because the court should appoint the guardian in consideration of other estate planning documents. The guardian should only carry out duties not already provided for. To avoid confusion, you should attach your other estate planning documents to your nomination of guardianship to ensure that the judge will be aware of their existence. If a power of attorney or trustee believes a guardian was appointed improperly or is going beyond their role, they can contest those actions in court.

Are There Downsides to Being a Guardian?

Whether a guardianship is for an adult or minor children, being appointed as a guardian is a major responsibility. Like a parent, it can mean making tough choices and sometimes needing to put the other person’s wellbeing before the guardian’s own. The nominated guardian will also need to go to court during the nomination process and will need to make ongoing reports to the court as long as they remain guardian. Being a guardian is a lifetime appointment unless the judge appoints someone else.

Does a Guardian Have to be Local?

A guardian can theoretically live anywhere in the world. However, the judge will want to make sure that the guardian will be able to effectively perform their responsibilities without being unduly impacted by long-distance. For minor children, since they will often go to live with the guardian, the judge may also consider how a move would impact their lives and their access to other family members. You can and should include your wishes on these issues in your planning documents so the judge can understand the choices you made and to avoid conflicts between family members.

If you’re relying on a long-distance guardian, you should also consider who will act in a sudden emergency such as you being rushed to a hospital. You may want to have an alternate power of attorney that gives a more nearby family member the power to act until your guardian is able to step in.

Who Pays for Legal Fees During Guardianship Proceedings?

Your appointed guardian should understand that they don’t have to take on legal costs. If you have liquid assets, the court will pay the attorneys reasonable fees from your funds — just like any other of your expenses would be handled. If you don’t have liquid assets, there is a special guardianship fund established by the government. In no cases does the appointed guardian pay for court fees, although you may wish to set aside money to cover other expenses they may face while acting as a guardian.

Please note that this is separate from creating your nomination of guardian documents. Those costs would be arranged between you and your attorney just like any other legal work.

How Quickly Can a Guardian Be Appointed?

Even for a nominated guardian who isn’t contested, the court process is usually measured in weeks if not months. During an emergency situation, your family could petition the court to appoint a temporary guardian pending full court review. This person could potentially be the guardian you nominated.

In more urgent circumstances, such as an emergency room doctor needing an immediate decision, any power of attorney or living will documents that you created and are readily available will be used. Otherwise, the hospital or other entity would attempt to contact your next of kin and follow their authority in accordance with local law.

Talk to an Experienced Estate Planning Attorney

To learn more about how nominating a guardian fits in with your estate planning strategy or to start the nomination process, talk to an experienced estate planning attorney at Lilac City Law today.

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The Importance of Power of Attorney During Estate Planning

The Importance of Power of Attorney During Estate Planning

Your estate planning has many different parts that all need to move in the same direction in order to be successful. A vital part of this process is how to disseminate the various powers of attorney (POA). The POA will be one of the most important estate documents that you create, so you owe it to yourself to know as much as you can about it. Let’s take a look at just how important the POA is and how it will be used during the estate planning process.

What Is the Power of Attorney?

The power of attorney is the power to organize affairs on your behalf. There are different powers of attorney for different aspects of your life. For the purposes of this text, we will focus most on the financial POA, but there are also medical POAs and others that may apply during the estate process depending on circumstances.

In most cases, a power of attorney becomes effective immediately upon document execution. Contrary to popular belief, powers of attorney are not only for when a person becomes mentally incapable. In many cases, the POA document does not completely remove the power of the principal to manage their or her own affairs. The document simply grants the agent the power to act in place of the principal if needed. If the principal remains mentally competent, he can change the POA by replacing the agent or revoking the power totally.

However, the POA document truly becomes the most important document in the estate planning portfolio if a principal becomes somehow incapacitated or otherwise unable to handle their own affairs.

What Happens Without a Power of Attorney in Place

If a principal becomes incapable of handling their own affairs and has no power of attorney document in place, the family of the principal faces a potentially contentious situation. The POA document is the document on record of the wishes of the principal. Without it, there is no direct claim to the finances that the principal was in control of. Family members may begin to fight over the right to control things, especially if the estate is especially large or there are many valuable assets to consider.

In place of a designated person with the powers of attorney, the affected parties may agree to file for guardianship of the assets and property of the principal that has been disabled. Instead of simply following the wishes of the principal as mapped out in the POA, the family must now go through an often long and drawn-out court procedure.

The Process of Guardianship

During the court process of selecting a guardian, there will usually be a lawyer who is representing the Petitioner. The Petitioner is the individual who is looking to be named as the guardian. The Petitioner and their attorney will need to face, at the very least, an attorney who is in court to represent the rights of the person who has been disabled. No matter how close the family is, this process will likely generate thousands of dollars in legal fees in order to legally appoint the guardian.

Keep in mind also that a power of attorney document that is not clear may trigger this contentious process as well. You need to have the right attorney with the right experience in order to avoid these problems — just having a POA document that is not appropriate for your situation is not enough. A properly drafted power of attorney directly from the principal, while he is competent, is always preferable to a guardianship court proceeding.

Even when a legal guardianship is in place, the court maintains a Big Brother stance over the guardian to supervise the administration of the estate. Guardians are much less free to manage an estate than someone who is appointed through a power of attorney document. Guardians must always get the permission of the court to legally undertake many important assets that involve the estate, including paying the attorney’s fees for the procedure itself.

The court will also require that a guardian file an accounting of the estate on an annual basis. On top of this, a guardian must also file an inventory of the estate so that the court knows every activity that is taking place within the family estate. Having to report everything to the court undermines the very nature of a private estate, and it is much more expensive than a power of attorney transfer of responsibility. In most cases, the oversight of the court means that a family must employ more legal services in order to stay in compliance with regulations.

If you are in this sensitive situation, we can help you through it no matter who you may be up against. Do not hesitate to call us if you believe you have a legal claim to the estate of a family member who has been recently incapacitated.

Having an Effective POA

As mentioned before, the power of attorney that is set up by the principal must be well-drafted and relevant to the current situation. Otherwise, the court may trigger the guardianship process and all of the expenses and legal hassle that comes with it.

What makes a POA document effective during estate planning? Let’s take a look at the characteristics of an effective power of attorney.

  • Listing specific powers and limitations. A good power of attorney will list out the specific actions that an agent can take on behalf of a principal. Among these actions may be paying bills from the principal’s assets; managing those assets; selling all or part of the estate; and setting up various structures to avoid estate taxes. A principal may wish their estate to be used in a very specific way, and this is what the power of attorney should spell out in clear terms.
  • Language in the POA to persuade financial institutions to accept an agent. The financial institutions that did business with a principal are under no requirement to accept an agent, even from a properly worded POA. Many of these institutions now require language that is very specific in the POA to reaffirm that there is no funny business going on. Agents should also be prepared to reaffirm their responsibility, possibly on the financial institution’s proprietary forms.
  • Listing consolidated accounts. As a principal, if all of your accounts are kept spread out, your agent will have a tough time jumping through all of the hoops of the financial institutions want. Every bank is different. Consolidating accounts as you age not only helps to organize your family finances in the estate, but it also makes it easier to manage while you maintain control over them. You may want to list all of these accounts by name in the POA so that each financial institution can be more assured of your agent’s viability.
  • Decide on the type of POA. There are two major types of POAs that you can consider: the springing POA or the durable POA. The durable POA gives the power of attorney as soon as the principal signs it. The springing POA only takes effect in the event of a certain condition, such as the death, disability or incapacity of the principal. The timing of agent powers is a vital part of a POA. Without it, an agent may try to take over a principal’s estate too early and cause contention. Keep in mind that not all states allow springing POAs.
  • Define the conditions of incapacity. The last thing that you want is for someone else to determine when you are incapable of managing your own affairs. In your POA, you can name a medical professional to certify that you are incapacitated before your agent can take any action on your estate. This puts an added layer of protection in your POA, and it also gives your agent a good check against absolute power while you are still capable.
  • Establish oversight. Although your agent may have power of attorney, you can limit this right with certain oversights. The key is to make sure these oversights are written down specifically and fully clear to your attorney, to your agent, to the overseer and to anyone else who is involved in your estate.

Get Help with Powers of Attorney Today

The points above are just a few of the important aspects of the power of attorney document during estate planning. Every plan is different based on the individual needs of the estate. Make sure that you have the right attorney by your side when it is time to draft this essential document. Give us a call or an email with any questions that you may have about the process, or to get things started with your own POA. Time is of the essence, and there is no better time than now to get your affairs in order.

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Who Will Help You Take Care of Your Estate If You Become Incapacitated?

You have provided for and protected your family for many years. However, when your children grow into adulthood, you will still have a legacy to protect.

You will want to make sure that your estate remains a testament to your dedication and hard work and serves the needs of those you leave behind.

But what happens if you are only incapacitated rather than passing away? Incapacitation can happen to anyone at any age, but for those of us in our golden years, becoming incapacitated at some point is all but inevitable.

Unfortunately, there is no one-size-fits-all plan to protect you if you become incapacitated.

That is why it is a good idea to understand all the preparations you can make and services you can access to help protect your estate should you lose the ability to manage it alone — either temporarily or for the long term.

The following is a list of legal provisions and tools you can use to help ensure your estate is taken care of if you should become incapacitated or die.

Last Wills and Testaments

A last will and testament is a legal document that contains the final wishes of an estate holder regarding his or her dependents and possessions.

A last will is written while the estate holder is alive and in a sound state of mind. It names an executor whose job it is to administer the estate and to follow the estate plan.

Should an estate holder die without drafting a valid will, he is said to have died “intestate.” The state becomes the executor of the estate.

There are several legal implications to be considered when drafting your final will. It is best to consult an attorney to assist you in writing your last will in a manner that guarantees your estate is settled following your wishes.

Trusts

A trust is a fiduciary agreement that assigns a trustee to hold specific assets on behalf of one or more beneficiaries. Traditionally, the purpose of a trust is to minimize the tax liability of an estate.

A trust is usually designed to avoid probate, which can compromise the privacy of an estate holder and can be a lengthy and expensive process.

A trust gives you the ability to ensure your wealth is managed according to your wishes — to protect your legacy, ensure privacy, and save money on the probate process.

There are many different types of trusts, each with their features and benefits. It is best to consult with an attorney to help you choose the type that suits your needs.

Health Care Powers of Attorney

If you should become incapacitated, you may be unable to communicate your wishes regarding your health care. A health care power of attorney is a document that designates a specific person as holding the authority to speak for you in matters of health care.

Many people assume they will not lose the ability to communicate should they become infirm, are injured or are otherwise incapacitated. Unfortunately, this is not always the case. A family member, trusted friend or an attorney can be given health care powers of attorney.

Financial Powers of Attorney

Financial powers of attorney are similar to health care powers of attorney except that they concern financial matters rather than health matters.

If you should lose the ability to communicate, they give someone permission to make financial decisions on your behalf.

Other Powers of Attorney

Powers of attorney give the designated holder more than just the ability to speak for you should you lose the ability to communicate. It can also allow the “agent” or “attorney in fact” to access accounts such as a bank account or retirement account.

A durable power of attorney is used for property management and can help alleviate the costs associated with guardianship or conservatorship.

There are several types of powers of attorney, including those discussed above. A lawyer who specializes in estate law can help you decide which is best for your needs.

Guardianship Nomination

A guardian nomination is a document that describes how you wish your minor children to be cared for if you and/or the other parent lose the ability to provide care. It specifies who can be appointed to care for your children and to act as a legal guardian and how care should be given.

Guardian nomination goes into effect after both natural parents lose the ability to provide care.

The dictates of the nomination must be written within the confines of the law for it to be recognized by the court as valid. Your attorney can help you to draft a guardianship nomination that meets the legal standard.

Inheritance

Inheritance is what your dependents receive if you pass away if you have not provided a last will. Inheritance laws differ from one state to the next, and they leave much to the whim of the state.

It is ideal to have a last will to ensure your estate gets settled in the manner of your choosing. However, an estate lawyer can help to ensure that inheritance is dispensed appropriately if necessary.

Heirs

Your legal heirs are anyone who receives ownership or interest in your property, land or hereditaments should you die intestate. In most cases, these are your spouse, children, or other close family members.

Of course, if you do die intestate, the state will take control of your estate and determine who will receive what and how much.

As always, it is better to work with an estate lawyer who will help you draft a last will that ensures that your heirs receive hereditaments per your wishes.

Probate

Probate is the process by which your will is proven to be valid. The validity of wills is decided by a probate court and can be a lengthy and expensive process.

The court’s job is to attempt to ensure that no fraud or undue influence was involved in the drafting of the will. It is possible to avoid probate through beneficiary designations or the use of a revocable living trust, among others.

Working with an estate attorney is the best way to ensure your will is written and delivered in a way that will make it abundantly clear that it is indeed your own and not that of anyone else — or that it was written under some undue influence.

Conclusion

These indispensable parts of your estate-planning toolkit, working together, can ensure that your estate is settled following your wishes. Do not let the state take ownership of your legacy, and do not leave it up to chance. To learn more, get in touch Lilac City Law and secure the future of your legacy today.

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Common Misconceptions About Designating General Power of Attorney

You have probably heard the term “power of attorney” many times. But do you understand what it does (and does not) mean?

Laws differ from state to state, and much of what we hear on the news is about power of attorney cases gone wrong.

Does this mean it is too confusing to understand? Not at all!

What you need is to distinguish the difference between fact and fiction when it comes to a general power of attorney.

In this post, we will debunk five common misconceptions about power of attorney documents.

Myth #1: All Powers Are Equal

Are power of attorney documents one-size-fits-all? Far from it!

Some are “limited,” which means that they are limited to one specific purpose. These purposes might include medical or financial decisions, such as the sale of a property. Others might include a time limit or only go into effect if you are incapacitated (or if you are not).

A general power of attorney may grant the chosen agent full right to make legal, medical, and financial decisions for the individual. It is crucial to select someone who is trustworthy and capable of managing your assets, estate, and health in ways that you would wish.

Myth #2: Internet Forms Are All You Need

There is a whole host of free legal forms on the internet, including power of attorney forms.

All you need to do is print one out and sign it, right? Wrong!

Internet forms may not be specific to your state’s laws, or it may be outdated. It may also grant your agent more, less, or the wrong type of power.

Your best bet is to have a personalized document drafted by a local, knowledgable lawyer.

Myth #3: You Give Up All Rights and Power

Many power of attorney documents do not take effect unless you are incapacitated and unable to make decisions on your own.

Assigning power of attorney does not mean you give up all rights to act in your own behalf. If you still have the ability to make your own decisions, you can, especially if your agent tries to make a decision that is not in your best interest.

Myth #4: You Can Get Power Anytime

This is an important one to take note of. Someone who signs a power of attorney document must do so while he or she is of sound mind.

Power of attorney is something that must be decided and arranged before a person is incapacitated. If you wait until the person is in a coma or develops a cognitive disease like dementia, it will be too late.  

Myth #5: Power Survives Death

A final myth we will address is that a power of attorney document remains in effect after the person dies.

Put simply; this is false. The document serves its purpose only as long as the individual is alive. 

After that, whatever is in the person’s will goes into effect. A power of attorney document does not trump a last will and testament. 

Final Thoughts on General Power of Attorney

Now that we have cleared up some common misconceptions, what is next?

If you and your family need to draft a general power of attorney document, do not go it alone.

personal family lawyer can provide the expert guidance you need to ensure the document is exactly what your family needs. Please contact our office today to discuss your concerns.

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Celebrate Your Military Family, Improve Your Military Will

Celebrate Your Military Family By Improving Your Military Will

There’s an old military adage that says, “No good plan survives engagement.” 

While this quote’s timelessness must lend credit to its applicability in battle, it transcends its martial roots and applies equally as well to law.  Especially Estate Law. 

Take for instance the idea of a Last Will and Testament.  A Will is probably the most well known and well-understood items in an estate plan.  The purpose of the Will is to make sure your assets go where you want them to go after you pass away.  It need not be too complicated, and in many cases, Wills have been as simple as notes scratched on a piece of paper from the deathbed of the person writing the Will.  <- We do not advise this, but if it is a bad idea and it works, is it indeed a bad idea?  

Today, and this month, we are celebrating the Month of the Military Kid.  As a law firm, this got us thinking, what can we do to celebrate?

 Share updates and resources, check.  Spread the good word, check.  Educate…  we can do that!  That is what this blog is all about.  Getting good information, usable information, from our brains and into a forum (this forum!) where readers can make informed decisions.  In that spirit, the purpose of this article is to answer for Veterans and those still serving, why their Military Will is not enough protection for their family, and show them how to fix this.  

Your Military Will Just Is Not Enough

It’s not your fault, and it is not a bad start.  But the hard fact is, your military Will is not enough protection for your family.  Here’s why.

As we mentioned above, a Will of any type is designed to designate who will get your assets when you pass.  The process begins with your death and then must go through a legal action known as probate.  Probate is the bane of estate planners for several reasons.  The top of these reasons being time, cost, messiness.

Probate is an Unnecessary Pain

Death is a hurry up and wait process when probate is factored in.  You are scrambling around trying to figure out last arrangements (if you haven’t set up an estate plan ahead of time), trying to figure out the finances of paying for burial or cremation, ceremonies, and getting family and friends together.  Then, you have all the assets of the deceased to figure out what to do with.

Houses, cars – are they owned?  Who has the right to sell them? Trinkets, storage items, family heirlooms, tv’s, jewelry, books, intellectual property, investments…the list is endless.  And it is going to take 6-9 months to figure out who has the right to even make decisions on these assets.  That is 6-9 months to work through probate, assuming the issue of ownership is uncontested!

Let’s set aside the time suck that is probate on Willed assets and work our way through costs.  Get ready to pay up to 10% of the assets of the estate just to transfer them to where they are supposed to go!

If you are keeping track that’s thousands of dollars and 6-9 months so far.  Again, IF the declarations in the Will are uncontestable.  Do you have an ex-wife that owns half your house but your adult kids and your current fiance’ are the ones named to inherit your assets in your military Will?  How’s that going to be settled?  Who is going to help you (or really them) to figure it out?  And how much is it going to cost?

Wills In the Military

Being honest, we are pointing out the drawbacks of Wills because there is another way for young families to prepare for the future. An approach that can release them & you from the turmoil of probate, the financial burden of an unnecessary legal process, and avoid the messiness of contested assets altogether.   So why does the military get service members set up with Wills in the first place?

For one, Wills are relatively straightforward and easy to set up en masse.  Did your command order you and 100 other people to set up your military Will through JAG?  Was it a pre-deployment Will or something set up for family day?  If so, it may be very limited in scope and entirely out of date if any one of a hundred or more things have happened since it was penned.

New kids, new property, new assets, new marriage situations, and more are all reasons to update a Will.  And in reality, updating a Will is not as simple as crossing off an outdated item and adding a new issue.  You are likely going to have to re-write the whole thing.

So, while military Wills get the job done, temporarily.  They do not grow with you and your needs, and if it has been a year or more since you established yours, you need another option.

Another Option – Let’s Talk Total Estate Planning

Wills are a means to an end and can be effective if you use them in the right way.  However they do come with drawbacks, and for a young military family, there are strong reasons to consider other paths for estate planning.  Especially, trusts, powers of attorney, and other options.

Recall from this discussion some of the drawbacks of Wills, and particularly military Wills.  

  • To transfer assets upon death requires probate, which can take 6-9 months;
  • Probate can cost up to 10% of the assets of the deceased;
  • Disputes over the Will can lead to painful situations which are only solved in probate court; and,
  • Wills only cover items and beneficiaries specifically.  Any change to your situation and family might change the whole dynamic of the military Will.  

A trust on the other hand

  • Can transfer assets almost immediately upon death, or even before passing if it is set up to do so. 
  • Will not require anyone to pay lawyers or a probate court.  Once the trust is set up the only cost is modifying it, if necessary.
  • Trustees (recipients of the trust) are decided between you and your estate lawyer when drafting and updating the trust.  It is very clear who your trustee(s) will be and under what conditions they assume control of the trust that your assets have been placed in. 
  • You can set up your trust to be disbursed to certain people in certain circumstances.  If you want your brother to receive part of your assets upon passing but not his spouse, you can make that a condition at any point.  
  • Lastly, a trust is private.  The process of going through probate opens up the details of your assets to the public eye.  Your beneficiaries could have unscrupulous suitors showing up at their door if you have a sizable estate to pass on.  A trust being disbursed to the trustee(s) in the manner you wanted is not handled in the public eye.  

Should You Scrap Your Military Will? 

You already know there are no absolutes in life.  And as we have discussed in this article, this sentiment is true in death too!

Should you scrap your military Will wholesale?  Maybe not.

At the very least, it is a fantastic jumping off point to discuss what else you should be considering or should have already considered.

The good news is that while you are still alive, it is not too late!

We Help Military Families Get Their Estate Plans In Order

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Setting up a Durable Power of Attorney in Washington State

Setting up a Durable Power of Attorney in Washington State

Setting up a Durable Power of Attorney in Washington State is pretty straightforward.

In this article is a brief description of what a Durable Power of Attorney actually is, as well as some specific rules that you must follow to set up a durable power of attorney in Washington State.

Durable Power of Attorney (POA) Explained

A durable power of attorney allows you to choose someone to handle your medical and financial needs.  It remains valid and in effect, if you become incapacitated and ends when you die or otherwise end the POA.  There are two types of durable power of attorneys.

Durable Power of Attorney for healthcare: The durable power of attorney for health care gives your designated agent the authority to make healthcare decisions on your behalf.

Durable Power of Attorney for finances: The durable power of attorney for finances gives your designated person the authority to make financial decisions on your behalf.

You can choose a person (known as your agent) to handle both the durable power of attorney for healthcare and the durable power of attorney for finances.  You may also choose different agents for each as long as they can work together (separate adult children for example).

For both powers of attorney, you also plan on an alternate agent.  This alternate agent would step in if the original person is unable to make decisions.

Powers of a Durable Power of Attorney in Washington State

A durable power of attorney in Washington state authorizes an agent to do the following on your behalf:

  • Make health care decisions for you
    • If you would like to have life-sustaining procedures withheld or withdrawn in the case of a terminal illness, you may also want to create a living will or advance directive to go along with your Power of Attorney.
  • Buy or sell items for you
  • Manage your business
  • Collect Debts
  • Invest money
  • Cash checks
  • Manage financial matters

Regulations for Washington State

There is no specific form you need to use for your POA for Washington State.  The only regulation is that the form or statement you use is notarized by a certified notary republic.  Most banks have a notary republic and are sometimes free if you are a customer.

After you and your agent(s) sign the documents in front of a notary, you want to make two copies.  The original will go to your agent, one copy will go to your alternate agent, and you will keep a copy for yourself.

Who Can Set up A Durable Power of Attorney in Washington State?

The following people can set up a durable power of attorney:

Estate planning attorney: You can use an estate planning attorney but do not have to by law. An attorney, like Lilac City Law, will customize your POA as part of your estate plan.

Loved one or trusted friend: Make sure you discuss with them what you want so that they can help you fill out the required paperwork accordingly.

Yourself: It is very important that you understand all decisions that you are making and what affects they will have before signing a legal document.  Be sure to choose a trusted person to act as your agent.  Most importantly, make sure they are willing to act as your agent.

We strongly suggest the first option above!   If you need assistance with your durable power of attorney, call our office today!

Contact Us, We’ll Help You Set Up Your Power of Attorney

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When Do I Need a Medical Power of Attorney in Washington State?

When Do I Need a Medical Power of Attorney in Washington State?

If you are searching for estate planning needs, you will likely come across the concept of a “Medical Power of Attorney.”

We wrote this article to help you understand what a medical power of attorney is, when you would need one, and how you would obtain one. 

What is a Medical Power of Attorney

A medical power of attorney may also be known as an advance care directive.  The medical power of attorney is a legal document in which you choose a person you trust (an agent) to make medical decisions on your behalf when you are unable to do so.  You can set up your power of attorney to state when and in what situations you want it to become effective.  For instance, it can be set up only to become effective after you have been deemed unable to make decisions on your own by your medical provider, or you may set it up to be more broadly applied to your life without needing any particular triggers to occur first.

In your medical power of attorney, you will be able to specify what you want your agent to be able to do on your behalf, including:

  • Sign medical documents on your behalf
  • Giving, withholding, or withdrawing informed consent including medical and surgical treatments
  • Decide if you receive life-prolonging interventions or psychiatric treatment
  • Determine if you are going to go to a nursing home, have hospitalization, or treatment in a nursing home or your own home
  • Decide measures for pain relief
  • Have access and control of your medical records

*When you choose an agent, make sure it is someone you can trust to follow your wishes.  Discuss your wishes with them and leave specific instructions in your medical power of attorney. 

It is also a good idea to appoint an alternate agent in case your agent is unable to make your health care decisions or is unavailable.

When You Need a Medical Power of Attorney

You need a medical power of attorney if you are unable to make your own decisions, or if you fear that this type of situation could or might occur.  Some things that can cause you to be unable to make your own decisions are:

  • Alzheimers or dementia
  • Brain injury
  • Severe illness
  • Coma
  • Age
  • Unconsciousness from an accident
  • Under anesthesia and cannot consent to a more extensive procedure
  • An Unforeseen Accident

You can guess at this point that it is a good idea and precaution to have a medical power of attorney even if you are young, healthy, and not expecting any major medical issues.  If there is an accident that leaves you incapacitated, and you do not have a power of attorney, your care decisions could be left up to the judgment of someone who does not know you, your values, or your wishes at all.

Where to Get WA Power of Attorney Support

We have spent some time talking about what sorts of support you should avoid in your estate planning quest.  Namely, impersonal online “one size fits all” templates.  Moreover, we consistently update our award-winning Lilac City Law blog on topics covering the full range of estate planning services.  However, whether you are looking at a template, or seeking more understanding, nothing truly beats speaking to a subject matter expert on these things.  Please feel free to reach out to us at any point, and we will set up a dedicated time to get to know your situation and offer practical, timely, and thoughtful advice on issues relating to your medical power of attorney, or other estate planning needs.

Contact Us, We’ll Help You Set Up Your Power of Attorney

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How Becoming Incapacitated Can Affect Your Family

How Becoming Incapacitated Can Affect Your Family

If you should become incapacitated at some point in your life, you can bet it will be both very scary and stressful for you and your family.

Becoming incapacitated and unable to take care of your affairs, does not mean that you do not have a plan or say in your care and finances though.

There are steps you can take today to ensure that you and your family are both taken care of should you or your spouse ever end up in this situation.

Advance Health Care Directive 

An advance health care directive is also known as a living will.  This document allows you to choose someone you trust to make your health care decisions.  This person might be a family member or a trusted friend.  Having someone designated to make sure your health care decisions are in line with your outlook and desires will take the pressure off of you and your family.

Working through the establishment of a living will/advance health care directive means stating clearly which health care and end of life choices you want.  This document also allows you to say what you want or do not want. For example, you can put in your advance health care directive that you do not want a feeding tube or you can put that you do want a respirator if those are your choices.  These directives eliminate ambiguity for your family when trying to make health care decisions on your behalf.

Setting up a living will/advance healthcare directive today is a great first step in getting your estate in order.

Set Up Your Advance Health Care Directive & Living Will Today

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Durable Power of Attorney for Finance 

A durable power of attorney is similar to the advance health care directive in that you choose a family member or a trusted friend to make decisions for you.  The difference is that this is for your finances.  Because of this, you want to make sure you choose a person you completely trust to make sound financial decisions for you and possibly your family depending on the situation.  The person you choose can be the same person as your advance health care directive but does not have to.

Guardianship Plan

When we say a Guardianship Plan, we are talking about a plan set up to help you to choose someone to take care of your minor children if you are unable to.  In many cases, your spouse will be there to the carry-on with guardianship of your minor children, but in the rare case both of you become incapacitated or only one of you are still living, it will give you the reassurance your children will be taken care of.

Along with choosing who will be your children’s guardian, you can also add a letter voicing your wishes for how your children are raised.  You can say what type of education you want for them, what religion you want them to follow, etc.

You can read more about guardianship plans and kids protection plans, here.

Trust

Having a trust set up for your children will ensure that your wealth is protected from undue taxes or probate while also setting up the transfer of your wealth and estate to those you designate.  You will be able to name a trustee who will help your children access your gift for things like schooling, housing, basic needs, or other things you want to designate.

To help reduce stress, the trustee and the guardian should be two separate people. However, they must be able to work together and make decisions in the best interest of your children.  Without a trust, your financial and property assets could become the rope in a tug of war between kids, relatives, and others.  If you were to become incapacitated, a trust would truly help to keep things straight for everyone!

Four Benefits of Printing Out Your Guardianship Plan on Good Ol’ Paper

Four Benefits of Printing Out Your Guardianship Plan on Good Ol’ Paper

In today’s society, most things are done on the computer and saved to a hard drive.  Important documents are very rarely printed out and filed in a file cabinet or folder.  However, there are benefits to printing out legal documents including your guardianship plan.

Here are four benefits of printing out your guardianship plan on good ol’ paper.

Accessibility

Most people have passwords on their computers.  If you should die or become incapacitated, how will your loved ones get access to your guardianship papers if you have a password on your computer?  If they cannot figure out your password they will have to trust the judge to make a decision on who is best to care for your children.  This will make it difficult for your loved ones to ensure your wishes are being met for your family.

Even if they are able to get access to your computer, they may not be able to figure out where you saved the guardianship papers.  Everyone has a different way of filing documents on their personal computer. For example, one person might put their guardianship papers in the file titled “Important Documents” while someone else might put it in a file titled “Stuff to Keep”.

Having it already printed and labeled in a file cabinet can be the easiest way for your family to access it.  In fact, here’s what we do when we create a plan for a client!

Verbal communication

Verbal communication is not enough.  It is great that you and your spouse agreed on someone to take your children and that person agreed to step in. However, you need a legal document stating who will be the legal guardian for your children.  If you print out your guardianship papers, you can give a copy to the person who will be caring for your children and you can put one with the rest of your estate planning paperwork. Having more than one copy ensures that it will be found when needed.

Expectations

Printing out your guardianship papers allows you to give them to your appointed guardian along with any other instructions you may have.  For example, you can write a letter of instruction to them.  You can explain your hopes and expectations for your children’s upbringing including education, activities, and religion.

 

Security

Having your documents saved on your computer risks them being compromised by hackers. This may not happen often but you do open yourself up to the possibility if you are saving your guardianship papers on the computer. Other security threats you risk by saving your guardianship papers online are:

  • Ransomware (software designed to lock up a computer until a ransom is paid) (very rare for personal computers)
  • Theft
  • Viruses
  • Data failure (data and documents can be lost due to software or hardware failure)

Hackers are not the only ones that can change your document.  If someone really wanted to, they could log onto your computer and change your guardianship papers to benefit them.  If you have them printed out and stored safely then they are much harder to be changed.

Printing out your guardianship papers has definitive benefits that will ensure your wishes are met if you are to become incapacitated or if you die.

Talk to an Estate Planning Attorney About Family Protection and Guardianship, Today! 

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What if I Become Incapacitated? Who Will Take Care of My Family?

What if I Become Incapacitated? Who Will Take Care of My Family?

Not being able to take care of your family or yourself can be a scary thought. 

Who will make all the important decisions about your finances, health, and important decisions about your family?

There are some estate planning documents that will allow you to name someone to take care of you and your family. 

Let’s take a look at what they are.

Advance Health Care Directive

An advance health care directive allows you to name someone to make health decisions for you when you are incapacitated.  This is often used to decide on whether or not to use feeding tubes, ventilators, or other life-sustaining treatments.  It is also used if you are unable to speak for yourself or sign health documents even at a doctor’s appointment.

The Advance Health Care Directive is also known as a living will or durable power of attorney for healthcare.

If you do not have an advance health care directive, doctors will do everything they can to keep you alive even if that is not what you want.  Be sure to discuss with whomever you choose what you would want them to do.

Durable Power of Attorney for Finance

Similar in intent to an advance health care directive, the durable power of attorney for finance allows you to name someone to take care of your finances if you become incapacitated.  This can be the same person or a different person than you named for your healthcare decisions.

If you do not name someone, then a court will appoint someone to manage your finances.  Your spouse may not have access to your finances unless everything has/had already been set into a joint property.

You want to make sure that whoever you name is someone you trust.  They will handle all of your finances!

If you do not have someone you trust, you can contact a professional to help you setup fiduciary support.

Guardianship Plan

A guardianship plan will lay out what is to happen to your children should you be incapacitated. More than likely if you have a spouse, your spouse will take over the full care of your children. However, if you or your spouse is not in town, not readily available, estranged, or any number of other scenarios where you (or they) cannot immediately take custody of your children, things can go sideways, fast!

Here’s a breakdown of what you need to know about Guardianship Plans:

You will need to name a guardian for your children.  You can also include what you want for your children, such as the type of schooling they will receive, if you want them to participate in sports, what values and morals you want them to grow up with, etc.

You want to choose someone you trust to follow your wishes.  They also should be able to financially and emotionally support your children and perhaps even have the same faith or values as you do.

Trust

Setting up a trust for your children will make sure that they will have the financial support they will need.  It can also ensure that your children will not receive their whole inheritance when they turn 18.  Naming someone other than the guardian to be the trustee of the trust can help make sure your children are using their inheritance wisely.  Regardless, you want to make sure that the guardian and the trustee can get along and make decisions together.

There are many factors involved when trying to lay-out how a trust will coordinate with a guardian, powers of attorney, advance directives, wills, and more.  Your best bet is to set up a consultation with a great estate planning attorney.

Talk to an Estate Planning Attorney About Family Protection and Guardianship, Today! 

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