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The Emotional Impact of the Guardianship Process

Sad-674811_640There are very few times in my career that I can remember being in tears and having a difficult time separating myself from the situation and being “the lawyer”. 

Most of those situations occurred in a guardianship hearing where I was representing a family member who was trying to get guardianship over another family member simply because they did not have the proper paperwork in place. It is not my intent her to go into the legal/technical aspects of a financial power of attorney or guardianship, but more to focus on the emotional toll that the guardianship process takes on families. 

A guardianship is a court process where a judge appoints another person to be the guardian for an individual and essentially takes away from the person, who is referred to as the alleged incapacitated person, their right to make either medical or financial decisions, or both, for themselves once the court determines that they are incapacitated. 

Although this may seem pretty simplistic and straightforward, the inner workings are a little more emotionally complicated.

To start, the family member must file a petition with the court alleging that a family member lacks capacity and that they are a detriment to themselves or to society, and that it is essential for another person to be appointed to make their day-to-day medical and/or financial decisions. Once that is filed in the court, the judge will issue a citation, which then has to be read out loud to the alleged incapacitated person by somebody who is not the person bringing the petition reading, regardless of whether alleged incapacitated person can understand it or not. The person who read it must then sign an affidavit indicating that they did read it to the individual.  

The citation also provides that the alleged incapacitated person is entitled to an attorney, and that if they cannot afford one, an attorney will be appointed for them. A hearing is then held, and in most cases, the alleged incapacitated person has to be present in the courtroom for the hearing.

At the hearing, and often in front of their loved one, the people bringing the petition must testify about why the alleged incapacitated person is unable to care for themselves. The hearing can be very difficult for both the family and alleged incapacitated person, especially, as often happens, when the alleged incapacitated person clearly does not have capacity, but knows that they don’t like being in the courtroom and didn’t like what is going on and what is being said about them. 

I vividly remember one spouse repeatedly saying to her husband, “We were married for 45 years and this is the thank you I get?”  It was heartbreaking for everyone in the courtroom. 

Guardianships, while often necessary, and certainly a good part of our process, are an emotional burden on those involved, and often can be avoided if proper planning is done.  Please come have a conversation with us about any questions or concerns you may have around Guardianship.  Knowledge is power.  And we want to help.  It really is easier with planning in place.  You can either fill our our simple form here.

Or give us a call (717)845-5390.

 

 

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Defining Family for Estate Planning Purposes

Personal-4309965_640While I was presenting the other day, a woman in the audience raised her hand and asked me to define what is a family for estate planning purposes. I asked her to clarify the question.

After several attempts at trying to figure out exactly what she meant, I asked her, “What does family mean to you for estate planning purposes?” Her answer was enlightening and revealing. She said, “I do not have children. I do not have a sibling that I care about or like. So I don’t have a family. Why should I plan?”

What a powerful statement, and yet not that uncommon. 

Family for the purposes of estate planning documents simply means whomever or whatever you would like to see receive your stuff when you’re gone, or who is going to be the person or people who will assist you with making decisions as your power of attorney agents for finances or for medical treatment. Family is whomever you define it to be in your estate planning documents, and in the estate planning document context is not necessarily defined by blood or lineal descendants or lineage.

In her context, whomever she is going to name to receive the assets upon her death or to be her power of attorney agents or executors in her documents is her family for her purposes. When I explained that to her, it was clear that a weight was lifted from her shoulders.

She had gone through life believing she didn’t have any family and therefore had no need to do any type of planning. In the workshop, she learned pretty quickly that you needed to have documents in case of incapacity or death, but was struggling with who to name because she didn’t have anybody that she cared about. 

We brainstormed some ideas of some charities that were very important to her, and a neighbor friend who was very good with finances who assists her on a daily basis. She ended up providing for some charities upon her death and asking her neighbor friend to make some decisions for her while she is alive if she becomes incapacitated.

It was very clear to me that I had lifted a burden off of her that was causing major stress. 

The best thing about estate planning is that you are in control, and you get to define who family is, and it’s not defined by some other term or something that you are stuck with simply because others say so. 

This is just one example of how much insight attendees get when showing up for our workshops.  We encourage you to join us for one of our upcoming workshops and get your estate planning started.  Just click here to find out more.

 

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Should I put my child's name on my house to avoid probate?

Access-3509498_640We get this question at least once a week in the offices at Bellomo & Associates. Unfortunately, like other areas of estate planning and elder law, the answer varies from situation to situation.

The way that I explained this concept is very similar to physics;  For every action there is an equal and opposite reaction. 

Anybody who has been through one of my workshops or seen me present knows that I always do a concept called “The Three Lands”. The first land, on the far-left corner of the room is Tax Land. The middle of the room is Long-Term Care Land. The far right-hand corner of the room is Estate Planning Land.

In Estate Planning Land land, we all know that we want to control our property while we are healthy and plan for our loved ones if we become disabled. 

When in Tax Land, putting a child’s name on the house will avoid probate. In Pennsylvania, as long as the child has the property for more than one year in their name prior to the person’s death, it will avoid probate, also will avoid state inheritance tax.

If the child’s name is on the house, even if they don’t make it a year, they will still avoid probate even though they will have to pay Pennsylvania inheritance tax. However, there is so much more that has to go into this decision – don’t forget Long-Term Care Land! 

Yes, we can make this transfer from a tax perspective in Tax Land. However, what are we going to do if the person ends up falling ill and needs long-term care – Long-Term Care Land?

There is a five-year look-back period if a person is trying to qualify for public assistance under the Medicare program; if the transfer was made within five years of applying for Medicaid, then the transferor is penalized. Also, what if the child ended up getting divorced, entered a nursing home or was in a car accident? That would create other problems.

These scenarios are very common in our practice, but often are under-estimated. If you have ever had thoughts of transferring a property to a child, please seek the assistance of an elder law attorney to answer the questions in all three Lands to see it if makes sense.

And please join us for any one of our upcoming workshops.  It’s free and worth every bit of your time.  Just click here, then RSVP for the date and time what works best for you!

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