Patinelli & Chang, LLP

What Legal Documents Will You Need to Raise Your Grandchildren?

“While there are differing reasons for this, ranging from drug use or inability to care for the child, various legal issues arise when grandparents are the primary caretakers.”

It is not unusual today to see grandparents rearing their own grandchildren. Legal documents will be needed, according to the article “Grandparents Raising Grandchildren” that appears in the Record Herald. Most importantly, without the correctly prepared legal documents, grandparents will not be able to enroll the children in school or make important medical decisions on their behalf.

There are some options available to give grandparents the legal authority needed to make decisions, as they rear their grandchildren.

Grandparent Power of Attorney. If the parents of the child are living and their whereabouts are known, the parents and grandparent may execute a document known as a grandparent power of attorney. This allows the grandparent to legally manage a number of tasks:

• Enroll the child in school
• Obtain educational and behavioral information about the child.
• Consent to all school-related matters, like trips, after-school activities, etc.
• Consent to any medical, psychological or dental treatment for the child.

A grandparent power of attorney needs to be signed by the child’s parents, signed by the grandparents, be notarized and filed in the juvenile court of the county, where the grandparent lives. It is possible that the juvenile court may refuse to accept the Power of Attorney, if it believes that it is not in the child’s best interest.

A grandparent Power of Attorney is temporary, and it can be revoked at any time by the child’s parents. It also terminates immediately, once the child no longer lives with the grandparent.

Caretaker Authorization Affidavit. If the child is living with the grandparent and the grandparent has tried but failed to locate the parents, the grandparent may execute a caretaker authorization affidavit. This allows the grandparent to:

• Exercise care, physical custody and control of the child.
• Enroll the child in school.
• Discuss the child’s educational progress with school officials.
• Consent to medical, psychological or dental treatment for the child.

This document must be signed by the grandparent, notarized and filed in the juvenile court of the county, where the grandparent resides. Just like the grandparent Power of Attorney, the juvenile court may refuse to accept the caretaker authorization affidavit, if it believes it is not in the child’s best interest. The caretaker authorization affidavit is also temporary and terminates when the child no longer lives with the grandparent.

Legal Custody Proceeding. For a grandparent to obtain permanent custody of a child, grandparents need to file a complaint asking for legal custody to be granted to them. This is permanent, and also the most difficult option to obtain. An award of legal custody to the grandparents gives them the same rights as the parents while, at the same time, removing the rights of the child’s parents. The person who has legal custody may make all important decisions for the child, including educational and medical decisions.

If you are considering seeking full legal custody of a grandchild or grandchildren, speak with an attorney who will be able to explain the process that takes place and the larger circumstances. Make sure that you have an estate plan, including a will that names a legal guardian for your grandchildren, so a person you know, and trust will be able to take over as their guardian. You may also need to set up a trust or make them your heirs, so there will be money for their support and education.

Reference: Record Herald (Feb. 26, 2019) “Grandparents Raising Grandchildren”

Market Volatility Has You Worried? Here’s Something You Can Control

“Today, we're going to cover an important topic regardless of market performance: putting an estate plan in place.”

When investors are faced with turbulent markets, there’s a human response to want to do something—sometimes, anything. We’re hardwired to try to take control. That doesn’t always help us make the best investment decisions. However, as reported in this Daily Camera’s article, there is something that you can do that may make you feel better: “Freaked out about the market? Resolve to get your estate in order.”

If you care about your health care, financial affairs, minor children and even your beloved pets, this is an important task to take care of. An estate plan includes legal documents that help you, when you are living and helps your heirs, when you die. In addition to a will, powers of attorney that will give your loved ones the ability to manage your affairs, if you become incapacitated. An updated will ensures that your assets go to the inheritors you chose. Don’t forget your beneficiaries.

Your beneficiaries are the people who are named on several accounts and life insurance policies. You may have named people on investment accounts, life insurance policies, IRAs, bank accounts, annuities and other assets. If you have not done a full review of those documents in a while, you want to take care of this right away. Life and relationships change over time, and the people you originally named as your beneficiaries, may no longer be the ones you would select today. Note that any changes must be made while you are living—when you are passed, the beneficiaries receive the asset, regardless of what is written in your will.

If you’re not sufficiently motivated to make an appointment with an estate planning attorney, you should be aware that if you don’t have a will, the laws of your state will determine who gets your assets and even, lacking a will that names a guardian, who rears your minor children. You may or may not be a fan of court proceedings, but if you don’t have a properly prepared will, the court is going to be making a lot of decisions on your behalf.

Contact an estate planning attorney to begin the process of putting your affairs in order. An attorney whose practice focuses in this area of the law, is most likely a better choice than one who does wills on the side. There are many complex laws in estate planning, and there are many opportunities available to make the most out of your assets and grow your legacy. An estate planning attorney will know what will work best for you and your family.

Reference: Daily Camera (Jan. 6, 2019) “Freaked out about the market? Resolve to get your estate in order”

What if a Hostile Family Member Wants to Become Your Guardian?

“Tony Sr. has been at odds with his son, Tony, Jr, for years over a ranch Senior inherited from his father 20 years ago. The conflict arose shortly after the father/grandfather died.”

It’s a scary thought. Your own child is angry about your inheriting the family ranch and for 20 years has wanted you to sell the property and split the money with him and his sister. You know your son is not good with money and has no interest in keeping the family ranch intact. These are two things that you can’t overlook.  However, now you’re aging, and he is threatening to have you declared incompetent and institutionalized. Can you protect yourself? The article “Aging parents can protect against unwanted control by children” from Glen Rose Reporter, offers some straightforward answers.

There are protections available.  However, you’ll need to take action and speak with an estate planning attorney. Start by naming someone as your Medical Power of Attorney to make any decisions regarding medical treatment, in case you can’t make them for yourself. Don’t name your son or daughter—without the POA, the state law would put your son in that position of power.

Discuss with the person you want to designate as your POA, what your wishes are about health care and whether you want to have extreme measures taken, if they were to become necessary. Make sure they understand that their role is to carry out your wishes and they must be prepared to make some hard decisions.

In some states, a competent person can name the preferred guardian of their person or their estate, as well as the person(s) they do NOT want to be appointed. Have your attorney prepare and sign a declaration to that effect, in compliance with the laws of your state.

Your goal is to protect yourself, as well as your family ranch.

If you were to become incompetent, the judge appointing a guardian for you would be required to follow the directions in your declaration, unless that person is found to be disqualified or would not serve your best interests.

This is a heartbreaking scenario and its one you hope you’ll never have to face. However, we know our children better than anyone else and we know what they may or may not do as we age.

Speak with an estate planning attorney to create the needed documents for this situation and make sure your will and any other legal documents have been prepared with the family issue in mind. You may not be able to change your child’s behavior, but you can prepare for it.

Reference: Glen Rose Reporter (Sep. 17, 2018) “Aging parents can protect against unwanted control by children”

Fathers, Protect Your Children with an Estate Plan

“Despite how it safeguards their families, many men avoid will-writing and estate planning. What is it that makes them so hesitant to do it?”

There are as many definitions of a good father as there are good fathers. However, one thing everyone agrees upon, is that good fathers are responsible people, says Fatherly in the article “If You Do One Thing For Your Kids, Plan For Your Death.” A good father takes care of his children and keeps the world around them in working order. Responsibility is the backbone of parenting, and in our society, where ideas around masculinity are entwined with the concepts of leadership and authority—whether we think those concepts are flawed or gender-biased or not—a father is supposed to take care of things, with no loose ends.

The question is why do so many great dads turn into little boys, when it comes to addressing the tasks of having a will prepared and creating estate and guardianship plans for their children? Many say getting dads into their offices to get the process of creating an estate plan started, is extremely difficult. Having conversations about who should rear their children, if they should die, is nearly impossible.

The same dads who are obsessive about getting their collector cars tuned up every three months and checking smoke alarm batteries monthly, will keep putting off the will-signing appointment for months or years at a time.

It’s a superstitious thought: if I don’t have a will, I don’t die.  However, it’s more than that.

Many men feel that if they don’t have a lot of money, why bother with a will? Others say they don’t care what happens, since other people will figure out what to do after they are gone. Some say that their fathers didn’t have a will and things worked out. If you grew up in a family where estate planning and wills were discussed and not considered taboo subjects, you will be more likely to have an estate plan in place.

Sometimes, the men whose fathers were difficult about having a will, are more proactive about creating a will, since they don’t want to do what their dad did.

However, if you have the responsibility of fatherhood, you must have a will. A will is used to name a guardian (the person you want to raise your children), if you are dead or incapacitated. It can also name a person who will take care of the money left behind for your children. Children are perhaps the biggest reason for dads to have an estate plan.

Failure to have an estate plan means that a court will make the decision about who will rear your child and opens the possibility of a family battle over who will have that responsibility.

Don’t be like your dad if he was one who refused to have a will and left a mess for the family to clean up after his passing. Don’t avoid visiting your estate planning attorney. Remember that you are a model for your children and this is another way that you can show them that being a good father means taking care of the details—even when they are difficult.

Reference: Fatherly (Sep. 12, 2018) “If You Do One Thing For Your Kids, Plan For Your Death”

Prepare to Live a Long Life and Enjoy Every Bit of It!

“A long life is a great gift, but with the joys come some financial and legal challenges. The earlier you act to address them, the better off you and your heirs will be.”

Today’s adults are living longer. A non-smoking 65-year-old woman has a 50% chance of living until she’s 88—and her male counterpart could easily live to 85. It’s how life-expectancy works, according to the article in Kiplinger, “Are You Ready for Longevity? 4 Steps to Take Now,” The concept is the longer you live, the longer you are likely to live.

Given the happy fact that you should expect to live a long time, what can you do to protect yourself and your family? Here are four steps:

Have a plan for long-term plan. For a married couple, it’s likely that one of the two will end up in a nursing home. Plan for how you’ll manage to pay for that, long before you’ll need it. If you can purchase a long-term care insurance policy, while you are still healthy enough to qualify, you won’t need to use up all the household’s money to pay for the care. Long-term care insurance usually pays for both skilled nursing home care and in-home health care aides.

Traditional long-term care policies can be expensive. However, insurance companies have created hybrid policies that combine long-term care benefits with life insurance. If you don’t use the long-term benefits, your loved ones receive the life insurance proceeds upon your death. That takes a way the worry that you will pay premiums and get nothing back.

Plan for incapacity. You’ll need to have a medical advance directive, including a health care proxy and health care powers of attorney, so you can name another person to make your decisions when you are no longer able to do so. Do not assume that because you are married, your spouse will be legally able to make those decisions.

If you become incompetent and don’t have a medical advance directive in place, your family will need to go to court to get legal authority to make those decisions. This is a guardianship proceeding, which is expensive, time-consuming and stressful.

The same holds true for financial decisions. You’ll want a power of attorney, so someone else can sign on your behalf and access your accounts. This should be a trusted individual who will look out for you and your family.

If you die and assets are solely in your name, your family will need to go to court before they can access any of your assets.  This is the process known as probate. If you have an estate plan in place, your plan should include having some accounts that are POD or Payable on Death, so your loved ones are not left without assets. Your estate planning attorney will recommend the right planning tools, so that your family is protected.

Finally, do your tax planning as part of your estate plan. You likely won’t be paying federal estate tax.  However, chances are good that your state has an estate tax or an inheritance tax. An estate planning attorney will be able to minimize those taxes through techniques like credit shelter trusts, gifting during lifetime or moving to another state.

Reference: Kiplinger (August 13, 2018) “Are You Ready for Longevity? 4 Steps to Take Now”

Does Your Estate Plan Have All the Right Stuff?

“Many people think estate planning means deciding what happens to your things when you die. For that reason, many young families do not consider estate planning to be a priority. However, it may be one of the most important things young parents can do!”

A last will and testament is the document which parents need, to legally nominate guardians to rear their children if orphaned. It clearly delineates who should take care of the children and who should manage the money available to care for the children, as noted in The Daily Sentinel’s article titled “What is missing from your estate plan?”

While some people name one person to rear the children and handle the money, it’s a good idea to separate the two roles.

Without these instructions in a will, those left behind can have very different ideas about where the children should live and who should care for them. If the two parent’s families have very strong opinions, suddenly both families have hard choices to make about what will happen to the children.

No parent wants to leave a legacy of court battles and family division.  However, that’s what is likely to happen without a will.

There are other issues that estate plans address while you are alive.  It is also necessary to plan for incapacity. A living will, also known as an “advance directive,” is important because it helps pre-answer questions, regarding what treatment and care you would want if unable to speak for yourself. Do you want to be kept alive by artificial means? You do not want your loved ones making this decision during a time of great emotional stress, so this is an important document to have in your estate plan.

Finally, your estate plan should include a medical durable power of attorney to deal with all other medical decisions other than end of life. Without it, if you are not near death but not able to share your opinions about your care, your family and your medical providers are placed in a difficult position. In contrast, those who care enough about their family designate an agent and ensure that their wishes are made legally binding.

The big question everyone must face is “When should I start working on my estate plan?” If the answer is “Later,” then the real answer is “No time soon.” For young parents, that puts your minor children in a bad position, where a court may make the decision about who will rear them and how their lives will go on after you are gone.

Don’t make your family have to go through more than they would have to anyway. Speak with an estate planning attorney to create your estate plan, including these very important documents.

Resource: The Daily Sentinel (Aug. 12, 2018) “What is missing from your estate plan?”

Why Is a Power of Attorney So Important?

“……we often receive community questions surrounding powers of attorney (POA), so we decided to take a look at some of the most common misconceptions surrounding a POA.”

Most people understand the basic concept of a last will and testament: a document that directs how assets are to be distributed after someone dies. However, according to an article from A Place For Mom, “5 Misconceptions About a Power of Attorney,” there’s a lot of confusion over this legal document.

Misconception #1–You can sign a power of attorney, even if you are legally incompetent.

Not true. This is one of the most common misconceptions. In fact, if you have a document from a medical doctor that says a person is not competent, that person is no longer able to sign any legal documents. Many people generally think about what they need to do, i.e., accessing a bank account, when an elderly parent can no longer do so.  However, if Dad lost his legal capacity just before a power of attorney or living trust was signed, that’s no longer an option. You’ll have to go through a guardianship or conservatorship proceeding through the court to have any control over Dad’s assets.

Misconception #2—You can find a power of attorney document online.

You might find such a document online but it most likely will not be suited to your circumstances. You need to have a power of attorney custom drafted, so it is legal in your state and addresses your family’s needs. Many online documents end up being useless. It’s a big risk to take.

Misconception #3—A power of attorney lets the agent do whatever they want.

The agent under a power of attorney has a legal and fiduciary duty to make decisions in the best interests of the person who named them as power of attorney. They have not been handed a free pass; on the contrary, they have a big responsibility to do the right thing.

Misconception #4—There is one power of attorney.

This is why an estate planning attorney is needed for the power of attorney. There are two main types: a general power of attorney and a limited or special power of attorney. They are named correctly: a general power of attorney allows for buying or selling property or managing assets. A limited or special power of attorney refers to a specific transaction or task. Which one you need, depends on the laws of your state and the circumstances.

Misconception #5—A power of attorney survives death.

All powers of attorney terminate on death. Once a person has passed, so has the authority for their agent to act on their behalf. A durable power of attorney allows the agent to act, in the event of incapacity but not death.

Power of attorney is an important part of an estate plan and requires the specific knowledge of an estate planning or elder law attorney. Don’t wait until it is too late for a family member (or yourself) to have this document prepared and signed.

Resource: A Place For Mom (July 11, 2018) “5 Misconceptions About a Power of Attorney”

Should Felons Be Guardians?

Many states are grappling with their guardianship statutes, so that they can do a better job of preventing elder abuse. One question that has come up in Pennsylvania, is whether felons should be barred from serving as guardians for the incapacitated.

The U.S. has an elder abuse problem, with an increase in reports.

As many state legislators seek ways to curb this growing problem, they are having to come to terms with the fact that the very people the legal system has in place to protect the elderly, are often the source of the abuse themselves: guardians.

Many states have guardianship laws that are ineffective at protecting the elderly from the abuse. Therefore, state legislatures are debating guardianship laws in an attempt to make them better. One such state is Pennsylvania, as the Reading Eagle reports in "Bill would require background checks for guardianship."

One issue that has caused controversy in Pennsylvania is a proposal that would bar felons from becoming guardians. While that might seem like an obviously good thing at first glance, opponents of the idea point out that it would apply to people who committed felonies in the distant past without further legal problems.

Whatever your opinion is when it comes to felons serving as guardians, it is good that legislatures are discussing the issue of updating guardianship laws to better protect seniors from abuse.

Reference: Reading Eagle (April 14, 2018) "Bill would require background checks for guardianship."

The Dangers of Guardianships for Elderly

If courts are not adequate watchdogs of the guardians of the elderly, it can result in the elderly losing everything with little legal remedy.

Rudy and Rennie North were a normal Nevada couple in their 50s. Rennie needed some assistance with day to day living, which she was able to get from a nurse at home.

Then, a woman named April Parks came into their lives.

Parks owned a business and was considered a professional guardian. Without consulting the Norths or anyone in their family, Parks was able to get a letter from a physician's assistant declaring that the Norths needed a guardian.

Parks took this letter to court and was appointed their guardian.

The Norths again were never consulted.

No tests were conducted on them, to see if they were lacking in cognitive functioning and unable to care for themselves.

Eventually their life savings were used up and they now live in a converted office with their daughter.

The New Yorker reported this story in "How the Elderly Lose Their Rights."

Although things like this should never happen, they occur all too frequently.

If the legal system is not diligent in protecting the elderly from so-called guardians who just want to take what the elderly have, there is little the elderly can do about it. In this case, the court system was complicit in Parks' scam.

If you suspect that someone has used the guardianship system to take advantage of you or someone you love, it is vital that you speak to an elder law attorney immediately.

The attorney can help you to stop the guardian before it is too late.

Reference: The New Yorker (Oct. 9, 2017) "How the Elderly Lose Their Rights."

Before You Have a Baby

If you are expecting your first child, there are a few things that you need to do before the due date to make sure that you are financially prepared.

Having your first child is an exciting time in anyone's life.

People make all kinds of plans about the child. Names are picked out. Nurseries are built. Detailed plans about how to get to the hospital on the big day are decided. Plans to have grandparents come out to help take care of the new baby are often made.

All of those things are important.

In the frenzy of making those plans, people often forget that they need to make some financial arrangements before the baby is born, as Business Insider points out in "The first 3 things to do with your money before you have a baby are easy to overlook."

Things that you should do include:

·         Make sure that you understand health insurance and how to get your new child on your plan as soon as you possibly can. If your employer provides your insurance, then speak to your HR representative about what you will need to do.

·         Make sure that you have plenty of access to cash. Children often require parents to spend cash in emergencies. You will need to have liquid assets, so you can do that. A financial advisor should be able to assist you in getting those liquid assets.

·         Think about who you would want to be the guardian of your child, if anything should happen to you.  You should then go to an estate planning attorney and get a will, so the person you want to be guardian will be appointed by the court.

Reference: Business Insider (August 22, 2017) "The first 3 things to do with your money before you have a baby are easy to overlook."