How Does Guardianship Work?

How does guardianship work? For the most part, we are free to make our own decisions regarding how we live, where we live, how we spend our money and even with whom we socialize. However, when we are no longer capable of caring for ourselves, most commonly due to advancing age or dementia, or if an accident or illness occurs and we can’t manage our affairs, it may be necessary to seek a guardianship, as explained in the recent article “Legal Corner: A guardian can be a helpful tool in cases of incapacity” from The Westerly Sun. A guardianship is also necessary for the care of a child or adult with special needs.

If no proper estate planning has been done and no one has been given power of attorney or health care power of attorney, a guardianship may be necessary. This is a legal relationship where one person, ideally a responsible, capable and caring person known as a guardian, is given the legal power to manage the needs of a ward, the person who cannot manage their own affairs. This is usually supported through a court process, requires a medical assessment and comes before the probate court for a hearing.

Once the guardian is qualified and appointed by the court, they have the authority to oversee everything about the ward’s life. They have power over the ward’s money and how it is spent, health care decisions, residential issues and even with whom the ward spends time. At its essence, a guardianship is akin to a parent-child relationship.

Guardianships can be tailored by the court to meet the specific needs of the ward in each case, with the guardian’s powers either limited or expanded, as needed and as appropriate.

The guardian must report to the court on a yearly basis about the ward’s health and health care and file an annual accounting of what has been done with the ward’s money and how much money remains. The court supervision is intended to protect the ward from mismanagement of their finances and ensure that the guardianship is still needed and maintained on an annual basis.

The relationship between the ward and the guardian is often a close one and can continue for many years. The guardianship ends upon the death of the ward, the resignation or removal of the guardian, or in cases of temporary illness or incapacity, when the ward recovers and is once again able to handle their own affairs and make health care decisions on their own.

If and when an elderly family member can no longer manage their own lives, guardianship is a way to step in and care for them, if no prior estate planning has been done. It is preferable for an estate plan to be created and for powers of attorney be created, but in its absence, this is an option.

Reference: The Westerly Sun (Sep. 19, 2020) “Legal Corner: A guardian can be a helpful tool in cases of incapacity”

Key Parts of Estate Plan

The importance of having key estate planning documents cannot be overstated. That includes a will, an advance directive, powers of attorney for health care and financial matters and guardianships for minor children. Trusts may also be part of an estate plan, and they need to be created and funded in a timely manner. However,, according to the article “7 Things Your Client’s Estate Plan Might Be Missing: Morningstar” from Think Advisor, there are a number of frequently overlooked estate planning documents that make a difference.

Financial Overview. This gives a broad outline of your assets and can be a useful discussion starting point, when one spouse manages the money and the other needs to be brought up to speed. It includes information about larger assets, including the home, investments, cars and other valuables.

A Directory. Creating a complete master list of all accounts, including the account number, website addresses and the names of any individuals that you deal with on a regular basis, avoids sending loved ones on a scavenger hunt. Keep this document safe—either encrypt it or keep it in a locked, fireproof safe in your home.

Personal Property. Wills contain directions about property, but not everything gets included. Make a list of any tangible personal property that you want to go to specific people, like jewelry or artwork, and create a detailed memo. It won’t be part of the will, but most states consider such memos legally binding, as long as they are mentioned in the will. Your estate planning attorney will know what is best for your situation and in your state.

Plan for Pets. The best way to do this is with a pet trust, which is enforceable. You name a person to take care of your pets, and how much money they should use to care for the pet. The will can be used to specify who should be your pet’s caretaker. You can leave assets for the pet, but the designated person is not legally bound to use the money for the pet’s well-being.

Digital Estate Plan. Make a plan for your digital property, including tangible digital devices, like computers and phones and the data stored on devices in the cloud and online accounts, including social media, websites, emails, photos, videos, etc. Start by making an inventory of all digital accounts, which needs to be stored in the same way your directory is: under lock and key.

End of Life Plan. Advance directives are estate planning documents that are used to direct your wishes towards life-extending care, but they don’t always go into detail. Providing additional information to loved ones who might need to make health care decisions could alleviate a lifetime of guilt. Having conversations is a starting point but putting your wishes into a document is better.

Ethical Will. An ethical will in which the person hands down their belief system to loved ones is a gift and part of your legacy. What would you want the next generation to know about your beliefs? What life lessons do you want to share?

Reference: Think Advisor (July 22, 2020) “7 Things Your Client’s Estate Plan Might Be Missing: Morningstar”

Special Needs Planning for Parents
Individuals with special needs require special consideration in estate planning.

Special Needs Planning for Parents

Public benefits for individuals with special needs include health care, supplemental income, and resources, like day programs and other vital services. Some benefits are based on the individual’s disability status, but others are “needs tested,” where eligibility is determined based on financial resources, as explained in the article “Planning for loved ones with special needs” from NWTimes.com. This distinction is an important consideration in estate planning.

Needs testing” is something that parents must address as part of special needs planning, in concert with their own estate planning. This ensures that the individual’s government benefits will continue, while their family has the comfort of knowing that after the parents die, their child may have access to resources to cover additional costs and maintain a quality of life they may not otherwise have.

Families must be very careful to make informed planning decisions, otherwise their loved ones may lose the benefits they rely upon.

A variety of special planning tools may be used, and the importance of skilled help from an elder law estate planning attorney cannot be overstated.

One family received a “re-determination” letter from the Social Security Administration. This is the process whereby the SSA scrutinizes a person’s eligibility for benefits, based on their possible access to other non-governmental resources. Once the process begins, the potential exists for a disabled person to lose benefits or be required to pay back benefits if they were deemed to have wrongfully received them.

In this case, a woman who lived in California, engaged in a periodic phone call with California Medicaid. California is known for aggressively pursuing on-going benefits eligibility. The woman mentioned a trust that had been created as a result of estate planning done by her late father. The brief mention was enough to spark an in-depth review of planning. The SSA requested no less than 15 different items, including estate documents, account history and a review of all disbursements for the last two years.

The process has created a tremendous amount of stress for the woman and for her family. The re-determination will also create expenses, as the attorney who drafted the original trust in Indiana, where the father lived, will need to work with a special needs attorney in California, who is knowledgeable about the process in the state.

Similar to estate planning, the special needs process required by Medicaid and the SSA is a constantly evolving process, and not a “one-and-done” transaction. Special needs and estate planning documents created as recently as three or four years ago should be reviewed.

Our specialized team has the tools to tackle your estate planning needs, from Medicaid support to planning for people with special needs.

Reference: NWTimes.com (June 21, 2020) “Planning for loved ones with special needs”

Why Customize Your Estate Plan?
Customize your estate plan to reflect the needs and wants of your family.

Why Customize Your Estate Plan?

A well-written estate plan is customized and unique. The only thing worse than having no estate plan, is an estate plan created from a ‘fill-in-the-blank’ form, according to the recent article “Don’t settle for a generic estate plan” from The News-Enterprise. Compare estate planning to buying a home. Before you start packing, you think about the kind of house you want and how much you can spend. You also talk with real estate agents and mortgage brokers to get ready. The planning process is detailed, and more importantly, catered to your needs and wants.

Even when you find a house you love, you don’t write a check right away. You hire an engineer to inspect the property. You might even bring in contractors for repair estimates. At some point, you contact an insurance agent to learn how much it will cost to protect the house. You rely on professionals, because buying a home is an expensive proposition and you want to be sure it will suit your needs and be a sound investment.

The same process goes for your estate plan. Consulting a skilled professional, an estate planning attorney, will prove to be worthwhile in the long run. You may even consider weighing input from trusted family or friends. It is important to work with a professional attorney who will offer expert advice in customizing your estate plan.

An estate planning attorney will also help you to avoid problems you may not anticipate. If the family includes an individual with special needs, leaving money to that person could result in their losing government benefits. Giving property to an adult child to try to avoid nursing home costs could backfire, making you ineligible for Medicaid coverage and cause your offspring to have an unexpected tax bill. These are the very considerations that our team makes in preparing your personalized estate plan.

To the surprise of many, once your estate plan is completed, it’s not done yet. It is important to communicate your estate plan with the necessary parties. Make sure that the people who need to have original documents—like a power of attorney—have these documents, or tell them where they can be found when needed. Keep in mind that many financial institutions will only accept their own power of attorney forms, so you may need to include those in your estate plan. Medical documents, like advance directives and healthcare powers of attorney, should be given to the people you selected to make decisions on your behalf. Make a list of the documents in your customized estate plan and where they can be found.

Preparing an estate plan is not just signing a series of fill-in-the-blank forms. A well-done estate plan is customized and unique. An estate plan, after all, is a means of protecting and passing down the legacy that you have devoted a lifetime to creating, no matter its size.

Reference: The News-Enterprise (June 23, 2020) “Don’t settle for a generic estate plan”

Family Stress in Funeral Planning
Allow your family to grieve your loss without the hassle of complex funeral planning and afterlife arrangements.

Family Stress in Funeral Planning

Making your way through the process of the death of a family member is an extremely personal journey, as well as a very big business that can put a financial strain on the surviving family. Planning ahead by making afterlife care and funeral arrangements now is the only way to ensure that your family’s responsibilities remain hassle-free after your death. Rate.com’s recent article entitled “Plan Your Own Funeral, Cheaply, and Leave Behind a Happier Family”  notes that on an individual basis, it can be a significant cost for a family dealing with grief. The National Funeral Directors Association found that the median cost for a traditional funeral can cost more than $9,000. Considering the cost of a plot and the services of the cemetery to take care of the burial and ongoing maintenance and other expenses,  it can total more than $15,000. If you opt for cremation and a simple service, it may run only $2,000 or less. That would save your estate or your family $13,000. Regardless of your intentions, it is important to consider the amount of legacy that can grow from your last wishes. Researching the specifics of your arrangements can be difficult. Without directions, your grieving family is an easy mark for a death care industry that’s run for profit. This can be especially problematic when death creeps up suddenly and plans need to be made at a sudden notice. Even with federal disclosure rules, most states make it nearly impossible to easily compare among funeral service providers, and online price lists often aren’t required. Further, funeral homes aren’t typically forthright about costs that are required, rather than optional. The median embalming cost is $750. However, there’s no regulation requiring embalming. Likewise, a body need not be placed in a casket for cremation. The median cost for a cremation casket is $1,200 but an alternative “container” might cost less than $200. Our office can help you navigate these intricacies and overcome the seemingly endless money traps laid out by the death care industry. Doing the legwork now will make it easier on your family when you pass. The best thing you can do for your family is to write it down your wishes and plans and make it immediately discoverable. A detailed will and testament provides your family with guidance that simplifies life when you’re gone. It can be a great relief to tell your family everything you want (and don’t want). Be certain that you detail of all your wishes in writing. You should also make sure that the document can be easily located by your executor. Here’s a simple option: Write everything out, place your instructions in a sealed envelope and let your children and the executor know the location of the letter. This elementary step can be the start to helping their decision-making when you pass away, and potentially provide some extra money to help them reach their goals. For more detailed planning and secure services, reach out to our office today. Reference: rate.com (June 21, 2020) “Plan Your Own Funeral, Cheaply, and Leave Behind a Happier Family”
What Can a Strong Estate Planning Attorney Help Me Accomplish?
Consult with our team to find out if the Law Office of Michael T. Huguelet, P.C. is the right fit for you.

What Can a Strong Estate Planning Attorney Help Me Accomplish?

No matter your age, the estate planning attorney you hire should have outstanding credentials and testimonials to their efficiency and personal concern. At the Law Office of Michael T. Huguelet, our promise to service your needs is backed by experience and expertise. Our team is equipped with the tools to make your estate planning goals become a reality.

As you begin settling down, it is sensical to start considering how you’ll provide for and protect those you love. It’s important that these responsibilities rest in good hands. Your estate planning attorney ought to have the knowledge and skill to help you design a workable, legally binding estate plan, one that’ll keep your assets safe as they accumulate, protect your loved ones, and consider the possibility that you may become incapacitated when you least expect it.

It’s only natural that you would be picky in choosing your estate planning attorney. This legal professional must be able to:

  • Listen, understand, and address your individual needs
  • Clarify your options
  • Draft, review, and file all necessary estate planning documents
  • Make certain your estate plan covers all contingencies; and
  • modify your documents as your life circumstances change.

The future is unpredictable. Estate planning can help you make that future as secure as possible.

Estate planning can be as complicated as it is essential. Accordingly, regardless of our age, speak with a highly competent estate planning attorney as soon as possible.

As the COVID-19 pandemic has dramatically shown us, planning for the unexpected can never be addressed too soon.

Reference: Legal Reader (June 23, 2020) “When Should I Start My Estate Planning?”

Why You Need an Advance Directive Right Now
COVID-19 has elevated the necessity of estate planning. Contact our office to organize your advance directive today.

Why You Need an Advance Directive Right Now

The number of Americans who have died in the last few months because of COVID-19 is staggering, reports Inside Indiana Business in an article that advises readers to “Get Your Advance Directives in Place Now.” Just talking with family members about your wishes is not enough. You’ll need to put the proper legal documents in place. Writing an advance directive is necessary. And the good news is, it’s not that hard.

A mere one in three Americans has completed any kind of advance directive. In particular, younger adults tend to put off this task, a strategy which has proven to be a disastrous approach. Both Terri Schiavo and Karen Ann Quinlan were only in their twenties when they were not able to make their wishes known. Family members fought in and out of court for years. Learn more about this case here.

The clinical realities of COVID-19 make it increasingly difficult for healthcare workers to determine their patient’s wishes. Visitors are not permitted, and staff members are overwhelmed with patients. COVID-19 respiratory symptoms come on rapidly in many cases, making it impossible to convey end-of-life wishes.

Planning is important. But what is an advance directive? Advance directives are written instructions regarding health care decisions, if you are not able to communicate your wishes. They must be in compliance with your state’s laws. The most common types of advance care directives are the durable power of attorney for health care and the living will.

A durable power of attorney for health care names a person, usually a spouse or family member, to be a health care agent. You may also name alternative agents. This person will be able to make decisions about your health care on your behalf, so be sure they know what your wishes are.

A living will is the document that states your wishes about the type of care you do or don’t want to receive. Living wills typically concern treatments like CPR (cardiopulmonary resuscitation), breathing machines (ventilators), dialysis, feeding tubes and certain treatments, like the use of an IV (intravenous, meaning medicine delivered directly into the bloodstream).

Studies show that people who have properly executed advance directives are more likely to get care that reflects their stated preferences.

Traditional documents will cover most health situations. However, the specific symptoms of COVID-19 may require you to reconsider opinions on certain treatments. Many COVID-19 patients need ventilators to breathe and do subsequently recover. If in the past you wanted to refuse being put on a ventilator, this may cause you to reconsider.

Almost all states require notarization and/or witnesses for advance directives and other estate planning documents to be valid. Many states, including Indiana and New York, now allow for remote notarization.

Talk with your estate planning attorney about putting all of your estate planning documents in order.


Reference: Inside Indiana Business (June 8, 2020) “Get Your Advance Directives in Place Now”

What are the Most Important Items in an Estate Plan During the Pandemic?

KCRA’s article entitled“5 things to know about estate planning” says that estate planning is a topic that people frequently don’t like to think about. It’s often regarded as grim. However, more people now want to create a will or revise one that’s already in existence, because of the COVID-19 pandemic. With health and safety taking center stage, ignoring your financial security can be catastrophic.

You should have a will. You can find forms online, or you can (in some states) use a holographic will, which is handwritten. However, a holographic will can be incomplete and unclear. DIY estate planning isn’t a good idea if you have any property, minor children, or want to save on taxes for your family. Use an experienced estate planning attorney to ensure that you are covering all of your bases. The Law Office of Michael T. Huguelet, P.C. is at your service to bring ease and comfort to your estate planning journey. With over 40 years of legal experience under our roof, we have the skills and tools to get the job done.

estate tax planning in orland park, illinois
The Law Office of Michael T. Huguelet, P.C. will tackle your estate planning today, ensuring your peace of mind tomorrow.

Without a will, your “state” makes one for you. We put family first. Many people fail to realize the implications of life without a will. If you die intestate, state law will dictate how your probate estate will be distributed at your death. This makes it take longer to administer your estate, which extends the grieving process for family members.  It is also more expensive, more time-consuming and more work for those you leave behind. Lastly, you have no say in how you want your property distributed.

Why do I need a will? No one is immune to the importance of estate planning. Everyone should think about estate planning and have an estate plan in place. This should include what would happen, if you’re incapacitated. With the coronavirus pandemic, this might mean contracting the disease and being in a hospital on a ventilator for weeks and unable to care for your children. While admittedly grim to imagine, it is critical to prepare for the worst. With vested interest in both you and your loved ones, we respect a plan that fits the individual.

How long does a will take? Drafting your will is a very personal and customized process that usually happens over several meetings with a qualified estate planning attorney. It could be weeks or months, but the average length of time it takes to create a will is 30 to 60 days. In the midst of the pandemic, our attorneys are able to get these completed much more quickly. Become a client today to kickstart your estate planning. We are working around the clock to help families like yours.

What about COVID-19? When your will is complete, there’s usually a signing meeting set with the attorney, witnesses, a notary and the person creating the will. However, now there’s no way to safely gather to sign these critical documents. Many states have made exceptions to the witness rule or are allowing processes using technology, known as remote notarization. Call today to learn more about our updated signing meetings in the midst COVID-19.

Reference: KCRA (April 16, 2020). “5 things to know about estate planning”

For more helpful information on estate planning, visit: The Big Eight: Don’t Risk Your Retirement with These Mistakes

Is Your Estate Plan COVID-19-Ready?

 

Even if you have done comprehensive estate planning with the guidance of a qualified attorney, you may want to re-evaluate certain elements of your plan now, through the lens of the COVID-19 pandemic.  Reviewing your estate plan with an attorney will provide guidance and piece of mind that your affairs are in order.

Why make changes? There are two uniquely challenging aspects of this pandemic that your current plan may not adequately address.

  1. Medical treatment for severe cases of COVID-19 frequently involves intubation and ventilator therapy to combat respiratory failure, and
  2. Quarantine and isolation orders blocking hospital visitors create some communication barriers between patients, doctors and family members.

So, how might these unique challenges impact your estate plan?

Living Wills. If your living will contains a blanket prohibition on intubation, you may want to reconsider that decision.

Durable Powers of Attorney (DPOA). Given the communication difficulties that may arise when a patient is hospitalized during the COVID-19 pandemic, you may want to revisit the terms of your DPOA to make it easier for your agent to act on your behalf.

Health Care Power of Attorney. A health care power of attorney allows you to appoint someone else to act as your agent for medical decisions. Under normal circumstances, this person would likely confer with your attending physicians in person and again, these in-person communications may be difficult right now. You want to add language to expressly authorize electronic communication with your agent.

The attorneys of the Law Office of Michael T. Huguelet, P.C. focus primarily in this area of the law and can advise you on whether your current estate plan accurately represents your wishes during this uniquely challenging time.  Our offices are open and ready to assist you with preparing a new estate plan or tailoring an update to your estate plan during the COVID-19 pandemic.

Resource: ElderLawAnswers, Three Changes You May Want to Make to Your Estate Plan Now Due to the Pandemic, April 30, 2020