The Pros and Cons of Guardianships for Parents of Impaired Adults

guardianship of elderly parentGuardianship offers additional options, but is hard to obtain, for a very good reason.

When we think of legal guardianship or conservatorship, several types of situations typically come to mind. We imagine instances involving a minor child whose parents may have died young, an elderly parent with dementia, or an adult who has been severely injured and can no longer take care of himself.

But a new category is evolving: an adult child whose decisions are impaired. This category has made headlines in recent years thanks to celebrities such as Britney Spears, whose father has been her court-appointed conservator since 2008. Spears records albums, performs worldwide, and is one of the most recognizable celebrities in America. Yet while she is under conservatorship, she does not have the right to make financial or legal decisions.

When a person is put under guardianship or conservatorship (the specific term used varies by state), that court-appointed fiduciary has the legal right to overrule the decisions the ward makes. The court-appointed fiduciary must report to the court and in certain circumstances, such as ordering antipsychotic medication, must prove to the court that the decisions are necessary.

It’s tricky to determine when it makes sense to appoint a guardian for a young adult whose decision-making is impaired. Many young adults make bad, and sometimes unsafe, decisions. These often involve alcohol or drug addictions. Even so, the key question is whether that is enough to justify taking away their personal liberties and overruling their rights.

Proceedings can divide families

An adversarial protective proceeding is fraught with emotional and legal peril, and the decision to seek a guardianship often divides families. Some family members may think a guardianship is the only alternative, while others might believe it is a mistake. The uncertain outcome of a proceeding complicates the situation. If the adult child “wins” and retains competence, then family relations can break down and any trust or confidence between the parent and adult child can evaporate.

It is noteworthy that in many states the protective proceedings of guardianship or conservatorship can be voluntary—the person involved can agree to have a legal guardian or conservator appointed. A distinct advantage to this type of protective proceeding is that it does not have to be adversarial. Twice in my practice, I have seen a person enter into a voluntary protective proceeding and then have that protection end in a few years, after which the person again took charge of his own legal and financial decisions. But voluntary guardianship isn’t always an option.

It is (and should be) difficult to put adults under guardianship or conservatorship against their will. Courts must tread slowly and carefully on this slippery slope. To complicate matters, many states define competence for legal purposes differently from competence for medical purposes. In all states, however, those seeking to place someone under involuntary guardianship or conservatorship must first produce ample medical evidence to support this course of action.

The person being put under guardianship or conservatorship receives advance notice of the court proceeding and has the right to object to it. Court proceedings, which are public, can take time and can be costly due to legal fees and related bills. If the proceedings involve finances, the court-appointed fiduciary must also file annual accountings.

Other Options

A less severe option, and an important first step for many, is putting in place the basic estate planning documents—durable power of attorney (for financial purposes) and health care proxy (for medical purposes). These documents are important because they start the process of providing another person with the legal authority to act. One advantage of these documents is that they exist outside the court system. Therefore, any financial actions taken by the attorney-in-fact under the durable power of attorney or health care actions taken by the health care proxy are private.

These documents are also important for parents who wish to view the medical or financial records of their adult children. Once young adults reach the age of majority (age 18 or 21 depending on which state they live in), no one has the right to access their records without a Health Insurance Portability and Accountability Act (HIPAA) release. But a durable power of attorney and health care proxy can be used to waive HIPAA privacy rights. In most states, adults have the right in a durable power of attorney to designate whom they would name as their guardian/conservator if protective proceedings commence. The person nominated as a fiduciary has the right to be present in a protective court proceeding, if such a proceeding commences.

For many of our clients, dealing with an adult child who has a significant mental health or addiction issue can be a considerable challenge. In addition to the traditional paths of medical and psychiatric care, the appropriate legal options also should be explored. At a minimum, for any child at the age of majority, a health care proxy and a durable power of attorney should be executed. For more extreme situations, the legal protective proceedings of guardianship or conservatorship may be an answer. To fully explore the available courses of action, clients should consult an estate-planning or disability-planning attorney, a physician, and a psychiatrist.

 

Patricia Annino is a sought after speaker and nationally recognized authority on women and estate planning. She educates and empowers women to value themselves and their contributions in order to ACCOMPLISH GREAT THINGS in the world – and in so doing PROTECT THEMSELVES, those they love, and the organizations they care about. Annino recently released her new book, “It’s More Than Money, Protect Your Legacy” available at Amazon.com. To download Annino’s FREE eBook, Estate Planning 101 visit, http://www.patriciaannino.com.

So You Want to be a Cadaver? Understanding the Uniform Anatomical Gift Act

In March, Dick Cheney received a heart transplant and Richard Norris a 37 year old shooting victim received the most complete facial transplant to date (including new jaw, tongue and teeth). About a year ago Charla Nash, the woman mauled by her friend’s chimpanzee, received a face and hand transplant. Susan Whitman’s husband, Joseph Helfgot died during a heart transplant operation. Ms. Whitman told The Boston Globe that she was surprised that the organ bank called and asked her if she would authorize a facial transplant. She immediately spoke to her children and the family immediately agreed to it. In the interview she stated, “It’s easy to sign up and say you are an organ donor. It is another to have your family understand and facilitate that. It is painful and takes strength and a will to do it.”

Medical science is advancing. An increasing number of individuals wish to make anatomical gifts for the purposes of transplantation or medical research. The Uniform Anatomical Gift Act (the terms of which when enacted varies from state to state) standardizes the rules concerning organ and tissue donation. Anatomical gifts may be made during life, or more commonly, after death. 

In most states a donor, or his or her health care agent, may make an anatomical gift in several ways, including: 

  1. By a statement or symbol to be imprinted on the donor’s driver’s license or identification card;
  2. By Will – (An anatomical gift made by Will, shall take effect upon the donor’s death whether or not the Will is probated. Invalidation of the Will after the donor’s death will not invalidate the gift);
  3. By verbal communication to two witnesses during a donor’s terminal illness or injury
  4. By a donor card or other record signed in the presence of two witnesses or by inclusion on a donor registry.

If the deceased individual did not make a lifetime choice to make an anatomical gift and the Will is silent then certain authorized persons can make the gift for the deceased individual. In most states the persons who can do so (in order of priority) are the health care agent, spouse, adult children, parents, adult siblings, adult grandchildren, grandparents, an adult who exhibited special care and concern for the decedent, the persons who were acting as guardians at the time of death and any person who has the authority to dispose of the decedent’s body. If there is more than one member of the class entitled to make the decision that person can do so unless they know of an objection by another member of the class. If there is an objection then the gift may be made only by a majority of the members of the class who are reasonably available. 

An anatomical gift can be changed or revoked. A person can also refuse to make an anatomical gift. This refusal can be done in writing or, in some circumstances orally. A refusal can also be made in a Will. 

The gift can be made to the following persons or organizations: 

  1. A hospital, accredited medical school, dental school, college or university, organ procurement organization or other appropriate person for research and education.
  2. An individual recipient of the part, as designated by the person making the anatomical gift.
  3. An eye bank or tissue bank.

As with most estate planning decisions, the question of whether or not to make an anatomical gift is a personal one. It is wise for you to consider now whether or not you would wish to make an anatomical gift and state your intent to those who would make that decision if you are unable to do so. For those who wish to make an anatomical gift you should make that gift in your Will. And, now that in many states your health care agent has the power to make an anatomical gift on your behalf during your lifetime you should consider updating your health care proxy to either prohibit him or her from exercising the power, or to outline the desired scope of limitations of your proxy’s ability to exercise this power. 

The official U.S. Government website for organ and tissue donation and transplantation, http://www.organdonor.gov, is maintained by the U.S. Department of Health and Human Services. A downloadable donor card can be found at http://organandonor.gov/donor/index.htm. 

All fifty states and the District of Columbia have enacted statutes based on the Uniform Anatomical Gifts Act. The law varies from state to state and should be reviewed prior to making an anatomical gift. 

Certain organizations promote organ donation. The Organ Procurement and Transplantation Network (OPTN) is the universal transplant network. It is a private non profit organization and operated under a federal contract with the U.S. Department of Health and Human Services. Its goal is to increase and ensure the effectiveness, efficiency and equity of organ sharing in the national system of organ allocation and to increase the supply of donated organs that are available for transplantation. The UNOS website, www.unos.org, provides information about transplant centers in various geographic areas and about the donation of particular organs.  Donate Life America (www.donatelife.net) promotes organ donation. Its website provides general information about organ donation and contains information on organ donation in each of the 50 states and the District of Columbia. MatchingDonors.com (www.matchingdonors.com) is a non profit organization that matches persons needing an anatomical gift with prospective donors. 

Patricia Annino is a sought after speaker and nationally recognized authority on women and estate planning.  She educates and empowers women to value themselves and their contributions in order to ACCOMPLISH GREAT THINGS in the world – and in so doing PROTECT THEMSELVES, those they love, and the organizations they care about.  Annino recently released an updated version of her successful book, Women and Money: A Practical Guide to Estate Planning to include recent changes in the laws that govern how we protect our assets during and beyond our lifetime.  To download Annino’s FREE eBook, Estate Planning 101 visit, http://www.patriciaannino.com.

New Risk to Family Cohesiveness: Impact to individual goals and life plans

New Risk to Family Cohesiveness: Impact to individual goals and life plans by the increasing lifespan of baby-boomer generation. Take the Steps Now to Put the Oxygen Over Your Own Face First and Decide Who Will Make Your Health and Financial Decisions If You Are Unable To Do So.

Another risk to family cohesiveness is the impact of increased lifespan to individual goals and life plans. Traditional risks included the illness, death or incapacity of a key family figure. In the family business and in the co-ownership of investment and commercial assets, the new risk is the increased work lifespan of the older generation, which results in the delayed succession of the middle generation. In essence, with the older generation in good physical and mental health and working far longer, the middle generation may in effect be knocked out of position and never get its day in the sun. By the time the older generation decides to move along, the individual goals and life plans of the middle generation may have been passed by; and the baton may be passed to the next generation. This new risk can be mitigated by intentional strategic planning and clear communication among all generations as to what the expectations are for the working lifespan and when the baton should/will pass.

Strategies to Mitigate the Risk of Increased Lifespan to the Ability to Control Your Own Health and Affairs and the Risk to Next Generation’s Life Plans:

1. Understand that estate planning is much more than what happens when you die; in an increasingly aging population that is living longer disability or incapacity planning is essential. Make sure you have in place the legal mechanisms so that you can be taken care of in the way you desire. It is important we all remember what the flight attendant says every time you board a plane- if the cabin pressure changes and the oxygen mask falls down put that mask over your own face first –it is only when you do put the mask over your own face that you will have the strength to protect others. In other words, protect yourself first.

2. Make sure the documents that will protect you if you are unable to care for yourself (Health Care Proxy and Durable Power of Attorney) are up to date and the way you want them.

A Health Care Proxy is a document in which you give the authority to an agent to make medical care decisions if he/she becomes unable to make them. The document can authorize everything, including minor and routine medical involvement, and can give the agent access to all your medical records. It can authorize someone to supervise your care if you are incapacitated, to consent to have you undergo certain types of treatment or to have them withdraw from treatment; to make hospital or nursing care arrangements; and to employ or discharge caregivers.   It can also empower the agent to make such major decisions as whether or not to terminate your life.

Under federal law, only one person at a time can be named as health care agent, but a Health Care Proxy can name a succession of people as alternatives.  This is done so that someone else can take over if, for instance, both spouses are in the same car crash, and neither one of them is in a condition to make medical decisions.  A copy of the Health Care Proxy should be given to your primary care physician and becomes part of the medical record.

As with a financial Durable Power of Attorney, in the health care area, couples usually designate each other to make medical care decisions and list their children as successor agents.  The health care agent must be someone they trust, who shares your value system, who is willing to perform the task and who has a clear understanding of what your preferences are.

It is prudent to update this document regularly, and, when it is updated, to make sure that the most recent contact information for those who have been designated to make health care decisions (including all telephone numbers and cell phone numbers) are current. If the Health Care Proxy was executed prior to The Health Insurance Portability and Accountability Act of 1996 (known as HIPPA) then the document must be updated. Under HIPPA, if you do not expressly waive your right to privacy in writing, hospitals and physicians do not have the legal right to speak with the health care agent or to release medical information to that person.

Choose a Health Care Agent. This important person may have different titles in different states (such as “health care agent,” “health proxy,” “patient advocate,”  “attorney-in-fact,” “health care representative,” or “health surrogate”), but the responsibilities are the same.  The official requirements for health care agents also vary from state to state, but most states simply specify that the person must be an adult (over 18) and must be someone who does not work for your health care provider or for an adult care facility in which you are residing.

It is good to designate both a health care agent and a successor agent (choice #1 and choice # 2), in case you need help at a time when the agent you have chosen is not available.  You should decide which child to choose, and if you have  no spouse or children, which friend or relative to choose.

In order for you to choose a health care agent wisely, it is helpful to establish a basis for evaluating potential candidates. That evaluation should include the following criteria:

1) Religious beliefs:  Since the concept of withholding artificial life supports runs contrary to the teachings of several religions – most notably the Catholic Church – it is helpful to find a health care agent who shares your  religious beliefs and your position on right-to-die issues.

2) Willingness to take on this task.

3)  Strength to act on your wishes and speak out on your behalf (even if faced with doctors, institutions, or family members who disagree).

4) Communication:  The agent is comfortable talking to you about sensitive issues and capable of listening to and absorbing what it is that you want.

5)  Separation:  This is a person who can differentiate between his/her feelings and yours and be able to do what you want done.

6)  Proximity: This is someone who either lives close or could travel quickly to be there when needed.

7)  Availability:  This person is likely to be accessible and capable of performing tasks well into the future.

8)  Personal Understanding:  He/she knows you well enough to intuit what is important to your.

9)  Negotiation skills:  He/she can mediate conflicts between family members, friends, and medical personnel.

Figuring Out What You Want: The following questions are designed to help you know yourself and to form a basis for discussion with the person you choose to execute your health care power of attorney.

1)  The Pleasures of Health:  How essential are these capabilities to your happiness?  (I.e. are they, Vital, Important, Mildly Important, Not important)

*Walking

*Enjoying the outdoors

*Eating, tasting

*Drinking

*Reading

*Attending religious services

*Listening to Music

*Watching television

*Avoiding pain and discomfort

*Being with loved ones

*Touching

*Being self-sufficient

2)  Fear Factors:  What are your biggest concerns about the end of your life?

3)  Spirituality:  How much of your comfort and support comes from religion?  From personal prayer?  From interaction with clergy?

4)  End of life: If you had the power to decide, what would the last day of your life be like?  Where would you be?  With whom?  What would you be doing?  What would your final words be?

5) Assistance Preferences Worksheet:  It is useful to discuss with your health care agent (and family members as well) the types of assistance you might want, should you need help, and to revisit this issue from time to time, because your preferences could very well change. Looking at each of the different scenarios spelled out below, think through what your preferences would be by asking yourself the following questions:

a) Would I still want to live at home?

b) Would I want caregivers hired to help me out in my home?

c) Would I want to be taken to a rehab or assisted living center?

d) Would I want family members to care for me?

e)  Would I want to live with one of my children?

f)  Would I want one of my children or a relative to live with me?

g) Would I want my health care agent to make these decisions for me?

h)  Would my answers differ if my spouse were still living at home?

-If you were unable to drive a car ___

-If you were unable to climb stairs ___

-If physical problems prevented you from being able to dress yourself ___

-If you had to use a wheelchair because you were no longer able to walk ___

-If you were unable to leave your home ___

-If your vision were seriously impaired ____

-If your hearing were seriously impaired ___

-If you needed kidney dialysis ___

-If you needed chemotherapy ____

-If you were in physical discomfort most of the time ___

-If you could no longer control you bladder ___

-If you could no longer control your bowels ___

-If you could not think clearly ___

The more you take the time now not only to think through who you wish to choose as a Health Care Proxy, but also how who would want various future scenarios to be addressed by that person, the more likely your wishes will be honored in the future.

Make sure (especially if you are in a second marriage) that you have coordinated the person chosen as your Health Care Agent with the person named as your Trustee and/or your Attorney in fact under a Durable Power of Attorney so that the decisions about your medical care and how to pay for it are coordinated.

What challenges are you facing in your estate individual goals and life plan?  Share your stores in the comment section below.

Patricia Annino is a sought after speaker and nationally recognized authority on women and estate planning.  She educates and empowers women to value themselves and their contributions in order to ACCOMPLISH GREAT THINGS in the world – and in so doing PROTECT THEMSELVES, those they love, and the organizations they care about.  Annino recently released an updated version of her successful book, Women and Money: A Practical Guide to Estate Planning to include recent changes in the laws that govern how we protect our assets during and beyond our lifetime.  To download Annino’s FREE eBook, Estate Planning 101 visit, http://www.patriciaannino.com.

Put the Oxygen Mask Over Your Own Face First! Choosing a Healthcare Proxy!

Why choosing a healthcare proxy is a far more important decision than who will receive assets at the time of your client’s death.

The most important focus of estate planning should not be what happens when your client dies. It should be what happens if that client loses the ability to make their own decisions. Make sure your client has put in place the legal mechanisms so that they can be taken care of in the way the client desires. It is important we all remember what the flight attendant says every time you board a plane — if the cabin pressure changes and the oxygen mask falls down, place the mask over your own face first. Similarly, it is only when your clients place their masks over their own faces, that they will have the strength to protect others. In other words, your clients should protect themselves first.

A Healthcare Proxy is a document in which your client gives the authority to an agent to make medical care decisions if they become unable to make them. The document can authorize everything — including minor and routine medical involvement — and can give the agent access to all the client’s medical records. It can authorize someone to supervise your client’s care if they are incapacitated, to consent to have them undergo certain types of treatment or to have them withdraw from treatment; to make hospital or nursing-care arrangements; and to employ or discharge caregivers. It can also empower the agent to make such major decisions as whether or not to terminate your client’s life.

Under federal law, only one person at a time can be named as healthcare agent, but a Healthcare Proxy can name a succession of people as alternatives. This is done so that someone else can take over if, for instance, both spouses are in the same car crash and neither one of them is in a condition to make medical decisions. A copy of the Healthcare Proxy is given to the primary care physician and becomes part of the medical record.

As with a financial Durable Power of Attorney, in the healthcare area, couples usually designate each other to make medical-care decisions and list their children as successor agents. For clients without spouses or children (or who are looking for alternative possibilities), I stress that their healthcare agent be someone they trust, who shares their value system, who is willing to perform the task and who has a clear understanding of what your clients’ preferences are.

It is prudent to update this document regularly and, when it is updated, to make sure that the most recent contact information for those who have been designated to make healthcare decisions (including all telephone numbers and cell phone numbers) are current. The document must be updated if the Healthcare Proxy was executed prior to The Health Insurance Portability and Accountability Act of 1996 (known as HIPPA). Under HIPPA, if your client does not expressly waive their right to privacy in writing, hospitals and physicians do not have the legal right to speak with the healthcare agent or to release medical information to that person.

Choosing a Healthcare Agent

This important person may have different titles in different states (such as “healthcare agent,” “health proxy,” “patient advocate,” “attorney-in-fact,” “healthcare representative” or “health surrogate”), but the responsibilities are the same. The official requirements for healthcare agents vary from state to state, but most states simply specify that the person be an adult (over 18) and must be someone who does not work for your client’s healthcare provider or for an adult-care facility in which your client is residing.

It is good to designate both a healthcare agent and a successor agent (choice #1 and choice # 2), in case your client needs help at a time when the agent they have chosen is not available. Your client has to decide which of their children to choose and if they have no spouse or children, which friend or relative to choose.

In order for your clients to choose a healthcare agent wisely, it would be helpful for them to establish a basis for evaluating potential candidates. That evaluation should include the following criteria:

  1. Religious beliefs: Since the concept of withholding artificial-life supports runs contrary to the teachings of several religions — most notably the Catholic Church — it is helpful to find a healthcare agent who shares your client’s religious beliefs and their position on right-to-die issues.
  2. Willingness to take on this task.
  3. Strength to act on your client’s wishes and speak out on their behalf (even if faced with doctors, institutions or family members who disagree).
  4. Communication: They are comfortable speaking with your client about sensitive issues and capable of listening to and absorbing what it is that your client wants.
  5. Separation: This is a person who can differentiate between their feelings and your client’s and is able to do what your client wants done.
  6. Proximity: This is someone who either lives close or could travel quickly to be there when needed.
  7. Availability: This person is likely to be accessible and capable of performing tasks well into the future.
  8. Personal Understanding: The person knows your client well enough to intuit what is important to them.
  9. Negotiation skills: The person can mediate conflicts between family members, friends and medical personnel.

Figuring Out What You Want
The following questions, which I suggest you pose to your clients, are designed to help your client know themselves and to form a basis for discussion with the person your client chooses to execute their healthcare power of attorney:

  1. The Pleasures of Health: How essential are these capabilities to your happiness? (i.e. are they vital, important, mildly important or not important):
    1. Walking
    2. Enjoying the outdoors
    3. Eating, tasting
    4. Drinking
    5. Reading
    6. Attending religious services
    7. Listening to music
    8. Watching television
    9. Avoiding pain and discomfort
    10. Being with loved ones
    11. Touching
    12. Being self-sufficient
  1. Fear Factors: What are your biggest concerns about the end of your life?
  2. Spirituality: How much of your comfort and support comes from religion? From personal prayer? From interaction with clergy?
  3. End of life: If you had the power to decide, what would the last day of your life be like? Where would you be? With whom? What would you be doing? What would your final words be?
  4. Assistance Preferences Worksheet: It is useful to discuss with your healthcare agent (and family members as well) the types of assistance you might want, should you need help and to revisit this issue from time to time, because your preferences could very well change. Looking at each of the different scenarios spelled out below, think through what your preferences would be by asking yourself the following questions:
    1. Would I still want to live at home?
    2. Would I want caregivers hired to help me out in my home?
    3. Would I want to be taken to a rehab or assisted-living center?
    4. Would I want family members to care for me?
    5. Would I want to live with one of my children?
    6. Would I want one of my children or a relative to live with me?
    7. Would I want my healthcare agent to make these decisions for me?
    8. Would my answers differ if my spouse were still living at home?
If you were unable to drive a car ___
If you were unable to climb stairs ___
If physical problems prevented you from being able to dress yourself ___
If you had to use a wheelchair because you were no longer able to walk __
If you were unable to leave your home ___
If your vision was seriously impaired ____
If your hearing was seriously impaired ___
If you needed kidney dialysis ___
If you needed chemotherapy ____
If you were in physical discomfort most of the time ___
If you could no longer control your bladder ___
If you could no longer control your bowels ___
If you could not think clearly ___

Conclusion

The more your clients take the time now not only to think through who they wish to choose as a Healthcare Proxy, but also how they would want various future scenarios to be addressed by that person, the more likely their wishes will be honored in the future.

Patricia Annino is a sought after speaker and nationally recognized authority on women and estate planning.  She educates and empowers women to value themselves and their contributions in order to ACCOMPLISH GREAT THINGS in the world – and in so doing PROTECT THEMSELVES, those they love, and the organizations they care about.  Annino recently announced the release of an updated version of her successful book, Women and Money: A Practical Guide to Estate Planning to include recent changes in the laws that govern how we protect our assets during and beyond our lifetime.  Annino’s book is an exhortation, resource and trusted companion for women in all facets of life.  To purchase the book visit:  http://amzn.to/hOHuEV or for more about Annino, visit: www.patriciaannino.com

 

Women And Money: Understanding Estate Industry Terms

Alimony trust: A trust established as part of the divorce agreement, into which cash, investment assets or business assets are transferred before the alimony payments are due. The trust then pays out the required amount of money for the alimony payments.

Annuities: Contracts between a financial institution and you which allow you to invest money that grows on a tax deferred basis. You may make payments at once or over time. The company promises to make payment to you – either for a specific time period or over your lifetime. No state or federal taxes are due as the money accumulates. When the funds are distributed to you they are taxed.

Beneficiary (primary, secondary): A person, trust or organization you designate to receive property at your death. You must name a primary (first taker) beneficiary for any life insurance policy, annuity, retirement plan and bank or investment accounts you hold. The secondary beneficiary you designate is the person, trust or organization you designate to take the assets if the primary beneficiary is not then living.

Clayton Q-Tip trust: A Q-Tip trust in which after one spouse’s death an independent trustee decides how much money passes to the trust for the surviving spouse and how much passes to the children (or to a trust for their benefit).

Convertible option: An opportunity in a life insurance contract to convert term insurance to more permanent life insurance, in many cases without a medical examination.

Disclaimer will: A will in which the assets are left to the surviving spouse and the surviving spouse had nine months after death to decide how much to keep and how much to disclaim for tax reasons and pass to a trust for the children.

Durable power of attorney: A document in which you give another person the authority to handle your financial affairs. The powers remain effective through any disability or incapacity you may have.

Estate:  Your taxable estate includes the total value, usually the fair market value, of all possession property and debts you own at your death. Your probate estate includes any asset that is in your name at your death. It does not include assets you own jointly with a right of survivorship, assets that are already titled in the name of your trust, assets such as a life insurance policy, or annuity or retirement planning asset that pass to beneficiaries by contract. You can have a significant taxable estate and totally avoid probate.

Fiduciary: Anyone responsible for the management of another’s property; including executor, administrator, trustee, guardian or conservator.

Gross estate: The value of your entire taxable estate without taking into account any deductions or credits.

Heir at law: The persons who are entitled by state law to inherit your estate if you do not leave a will.

Irrevocable trust: A trust that cannot be changed, amended, or revoked.

Key man life insurance: A life insurance policy on a key employee that is owned by and payable to the business. The intent is to provide the business with operating funds to hire a replacement for the key employee if he dies while employed.

“Living together” agreement: An agreement, usually between persons who are not married but living together which sets forth their respective rights to assets and income should the relationship terminate.

I hope you found these definitions helpful.  Did I miss one?  Do you have an estate related term that you don’t quite understand?  Please leave the information in the comment section below and I’ll be happy to provide a detailed response.

Patricia Annino is a sought after speaker and nationally recognized authority on women and estate planning.  She educates and empowers women to value themselves and their contributions in order to ACCOMPLISH GREAT THINGS in the world – and in so doing PROTECT THEMSELVES, those they love, and the organizations they care about.  Annino recently announced the release of an updated version of her successful book, Women and Money: A Practical Guide to Estate Planning to include recent changes in the laws that govern how we protect our assets during and beyond our lifetime.  Annino’s book is an exhortation, resource and trusted companion for women in all facets of life.  To purchase the book visit:  http://amzn.to/hOHuEV or for more about Annino, visit: www.patriciaannino.com

 

 

If I Die Before My Second Husband Can He Still Live In My House?

Protect Your Assets: Question and Answer with Patricia M. Annino, Esquire

Question:  I am a 55 year old widow with two teenage children. Next month I am marrying a 67 year old divorced man with three grown children. We plan to move into my home so that my children’s education will not be interrupted. I would like to revise my estate plan so that if I predecease my husband he can continue to live in the home but that at his death the ownership of the home will pass to my children and not to his new wife or his children. Is that easy to do?

Answer:

Easier said than done. You and your children lived in that home with their dad. Your children view that to be their family home and I understand that you want to make sure that if you predecease your husband he is not uprooted and eventually the home will pass to your children.

If your new husband has a good relationship with your children permitting them all to live in the home for a certain time frame makes some sense-he could continue to stay there with your children-at least through their graduation from school.

One way to accomplish the goal is to establish a living trust and transfer the ownership of the home to it. During your lifetime you can change the terms. At your death the trust becomes irrevocable-that means it cannot be changed, amended or revoked.

You must name a Trustee-a person or institution who will manage the home. You should consider naming your new husband as one of the Trustees. The Trustee has the authority to sell, mortgage and refinance the property. The trust should mandate that while your husband is living there he does not have to pay rent but is responsible for paying the real estate taxes, homeowners insurance and utilities.

It is prudent to have the only asset in the trust be the home-you should mandate that at your death other assets be transferred to it so that any major repairs or improvements can be paid for from that fund. If you do not have sufficient liquid assets to accomplish that consider taking out a life insurance policy and making that policy payable to the trust to provide the appropriate liquidity.

Patricia M. Annino, Esquire, is the author of the highly acclaimed book, Cracking the $$ Code: What Successful Men Know And You Don’t (Yet). Patricia is in demand nationally as a speaker for womens’ organizations on assorted topics.  Patricia works with organizations and women looking to educate and empower them to plan and work smarter with their finances and estates.  For more information visit:  www.patriciaannino.com

css.php