The Canton Repository newspaper wrote an excellent article on serving as a court-appointed guardian. The name used is CASA (court-appointed special advocate) or GAL (guardian ad litum). CASAs/GALs are typically appointed for incompetent adults, or for children, in court proceedings. In almost every court, CASAs and GALs are needed. I like this article’s explanation of what the role requires, and especially how those who’ve served explain what they do. The article focuses on Stark County in NE Ohio, but the roles and experiences apply throughout Ohio.
A trust is a contract, or a relationship, between the person who makes the trust (Grantor) and the person who manages the trust (Trustee). These are often the same person, initially. I make a trust (Grantor), and I manage the trust while I’m alive and competent (Trustee). The Trustee manages the assets that are in the trust for the benefit of the beneficiaries, who are people the Grantor chooses to receive assets that are in the trust. (I, as Trustee, manage assets in the trust such as investments, insurance, real property, etc., for the benefit of my children who are my chosen beneficiaries.)
Why have a trust?
The premier reason for a trust, in my opinion, is to maintain control from the grave. For example, if you have assets such as a house and retirement plan, and if you have a minor-age child when you die, your child will inherit everything–value of your house, retirement, assets—when he or she turns 18. It is likely that an 18 year-old person will mismanage (likely deplete) that amount of money. If you had died with a trust, however, the trust could have reserved money for college, would distribute money at certain staggered intervals (my clients typically choose a portion distributed to the child at 25, then 30 and then 35).
Benefits of a trust
Beyond “control from the grave” for the benefit of children, however, are other important benefits to a trust.
- Trusts do not have airtight privacy control but, as private contracts, are typically private. This is the opposite of probate and guardianship proceedings, which are both public matters. With a trust, you can avoid both probate and guardianship.
- Avoid probate if you own property in other states (ancillary probate). For snowbirds and others who own homes and other property in another state, if the property is held by (deeded or titled to) a trust, then you do not have to have ancillary probate. If you died owning a condo in Florida, you would have to hire a Florida attorney to probate your Florida property, unless the condo was held by the trust.
- A trust can serve as ‘contingent beneficiary.’ If you have a life insurance policy and name the trust as the beneficiary, then at your death the payout is to the trust which then manages that money according to the terms you set. If the payout goes directly to a child, the money could be depleted, or attached by creditors (your child’s divorcing spouse, or a victim of car accident your child/beneficiary caused, etc.).
- Protect assets from surviving spouse. Assets in a trust are not part of a probate estate, which means that they are not subject to a surviving spouse’s right under law to elect against the will. A trust reduces the chances that a surviving spouse can change the deceased’s estate plan after death, which can be important in blended families.
- Protect assets from creditors of Grantor’s estate. Assets in a trust are not part of a probate estate, and creditors generally cannot get to those assets. If I died with creditors wanting to get to my estate’s assets, the creditors would not be able to get to assets in my trust. Of course, there are some exceptions to this.
- Control the disposition of your assets. This benefit is similar to what I describe in the “Why Have a Trust?” paragraph above, but goes deeper. You can determine the terms of the trust. You can decide on whatever terms you want, except those terms that are against public policy (“nothing to my daughter if she marries someone outside of her race,” or “at my death dump the waste from my chemical company into the nearest river”). Some terms my clients have chosen include distributions to a beneficiary with addiction issues conditioned on passing drug tests, certain incentive distributions for a beneficiary pursuing higher education or receiving certain grades, etc. You can leave assets to a disabled beneficiary without jeopardizing that beneficiary’s government benefits (typically Medicaid and SSI). You can provide funds for the down payment of beneficiary’s first house or a car upon graduating from college. A trust can do most everything for a beneficiary that you would want to do if you were alive.
Trusts do cost substantially more than wills. The cost of will plans is in the hundreds of dollars, where the cost of trust plans often starts at about $1,200. However, probating an estate (with only a will) will likely cost more than having a trust plan prepared.
A trust is not for everyone. I highly recommend trusts for people with minor age children, blended families, and for those who wish to maintain control over the disposition of their assets after they die.
To find out if a trust is for you, email me at firstname.lastname@example.org.
A recent “Disability Scoop” article reported on a study in the upcoming April edition of the journal Intellectual and Developmental Disabilities showing that few parents plan for the future of their children with disabilities. This is not be surprising considering the complexity of planning involved, and the lack of resources afforded these parents. However, the end result is still the same as with estate planning in general: the person who knows the child and child’s needs best is leaving the future of their child up to someone who does not know the child. In other words, future decisions are left to the court.
Deciding on residential placement, guardianship, preparing a special needs trust—parents need help navigating this overwhelming journey. As a special needs planning attorney who prepares special needs trusts, my focus is on securing the financial future of a loved one with special needs without jeopardizing means-tested benefits, typically, Medicaid and Supplemental Security Income. Planning is particularly important since many children with special needs are living longer, and outliving their parents.
There is more to planning for your child’s future than securing his or her financial future with trusts, however, if your child has a disability. Where will your child live? Who will be his or her caregiver? There are many options available to explore, but knowing where to start is key. My recommendation is to start with The Arc: For People with Intellectual and Developmental Disabilities.
To learn more, or if you would like more information on special needs planning, email me at email@example.com.
The law presumes that once a child turns 18 (age of majority in most states; check your state law), that child is now an adult who can make legally-binding decisions about his or her health, finances, life. For these decisions to be legally binding, the person must be competent to understand what they are doing, the effects of the decisions they’re making. For some adults with special needs, they do not have the capacity to understand what they’re signing, to what they are agreeing, nor the effects of their decisions.
Many parents of a child with special needs are surprised to learn that once their child turns 18 (age of majority), the parents do not have most of the legal authority that they had when the child was a minor. For example, the parent of an 18 year-old disabled son or daughter cannot access their adult child’s confidential medical records or receive medical information. If their adult child is unable to make competent health, finance or life decisions, then some form of guardianship should be considered so that parents can continue to care for their child as they have for most of the child’s life.
“My child turns 18 soon. Where do I start?”
Your first decision will be to determine whether your child needs a guardian. Not every person with a disability needs a guardian, even someone with cognitive or intellectual disabilities. Parents know their child best, but consider this list when deciding whether—and what type of—a guardian is needed:
- Will your child seek medical care if he is sick or injured?
- Does your child understand medical instructions, take medicine properly, understand medical advice?
- Can she provide accurate information about her condition to medical personnel?
- Does your child have a basic understanding of finances? Would he know how to manage a bank account, pay bills, follow a basic budget?
- Can she count money, make change, and safeguard her money?
- Would your child be able to apply for benefits, or be able to locate a person who can help apply for benefits or services?
- Is she able to advocate for herself with agencies providing benefits and services, and understand the care and benefits that are needed?
- Can he purchase what is needed for clothing, food, shelter (get to a store, know what to buy)?
- Does he understand the significance of signing documents?
- Can she make decisions about work, living arrangements, school?
- Is he able to make decisions about personal safety, including locking doors, not talking with strangers, staying in safe areas?
- Does he know how to call 911, or summon help in an emergency?
This list is not exhaustive, and the inability to do some of the above might not signal the need for a complete guardianship but, instead, perhaps a limited form of guardianship, which is discussed below.
“My child needs a guardian. Now what?”
There are several forms of guardianship to consider. Most courts want the least restrictive alternative to be chosen, because guardianship can severely limit the “ward’s” ability to make decisions for himself or herself.
Guardianship is a state issue, and state guardianship laws and terms vary. In Ohio there are three forms of guardianship: guardian of the person (controls where the ward lives, works, attends school, etc.), guardianship of the estate (handles the finances of the ward), and guardianship of the person and estate (handles both personal affairs and finances of the ward).
There are alternatives to guardianship, such as conservatorship (help a competent but disabled person with finances), joint and survivorship bank accounts, representative payees who are designated people to accept payments from agencies, and independent living centers that assist people with disabilities in a wide array of areas.
Guardianship is obtained by having an interested person petition the court for guardianship. You must show why the disabled adult needs a guardian, and why the court should appoint you. You must follow stringent recordkeeping requirements. Proving to the court that the person is incompetent requires an affidavit from a doctor. Oftentimes supporting documentation can be included, such as school records. The court will schedule a hearing before a judge where the petitioner will show why guardianship is needed, and why the petitioner should be appointed.
Search guardianship laws, procedures and standards for your state if you are considering guardianship.
For more information on guardianship for a special needs adult in Ohio, email me at firstname.lastname@example.org.
Legal resources for handling your own legal matter should be made more readily available for the public since the cost of hiring an attorney can be too expensive for too many. In some situations, handling your legal matter yourself can be done if you are diligent about researching what you need, what is available, and what is required. Unfortunately, the trap of “you don’t know what you don’t know” can ruin the best-laid plans, particularly estate plans.
“All we want are simple wills.” This statement is followed by the direction that the couple (let’s assume they’re married) wants to leave everything to their spouse first, then the kids. That does sound simple: Mike and Carol Brady’s will would leave everything to each other then to their kids. What could go wrong?
A popular do-it-yourself-will website posted an article that shows the reader how easy it is to write your own will. First, name your executor. Second, name “guardians for young children.” Third, describe how assets will be divided and distributed. Fourth, sign in front of two witnesses, then have them sign. This is great too—again, what could go wrong? This does sound easy. Who needs an attorney!
Let’s examine the Brady’s “mirror wills” (they mirror each other—all to spouse, then to kids equally). The first red flag is that the Brady’s have children from other relationships, and like most blended families, the kids aren’t adopted. In most states, stepchildren do not inherit (unless specifically named). Here, a typical will would state “I leave all my assets to my wife Carol; if she predeceases me, then to my children in equal shares.” Mike dies, and all of his assets go to Carol. Carol dies, and her mirror will states “…all of my assets to Mike; if he predeceases me then to my children equally.” At Carol’s death, she had inherited all of Mike’s assets from when he died. Since Mike predeceased her, then all of her assets, including from Mike, go to Marcia, Jan and Cindy. Those are her children. Greg, Peter and Bobby are her stepchildren. What do the boys get? Nothing under this standard, simple will!
Now let’s examine the do-it-yourself article. Name your executor—not too hard, although the article did not mention naming successor executors, but most people would know that. However, “Name guardians for young children.” I name my brother John Doe and his wife Jane as guardians because they know and love my kids. What if they divorce—now my kids might be in the middle of a custody fight because both were named guardians. What if my brother John is killed in a car accident—does my sister-in-law keep my kids? She would if both are named. Or at brother John’s death would I then want my kids to go live with my sister so my kids remain with a family member?
The best (insert a little sarcasm) advice is “describe how assets will be divided and distributed.” That appears easy to do—divided evenly among my 3 kids. I see that phrase often in wills, “to my children equally.” Dad dies, Kid 1, Kid 2, and Kid 3 each get an equal share of his estate. But what if Kid 3 died before Dad? An attorney would counsel you, and prepare accordingly, whether you want your estate divided between Kid 1 and Kid 2, or if you want one share to Kid 1, one share to Kid 2, and one share to go down to the children of Kid 3 (Dad’s grandchildren).
Most people who do their own wills and estate plans think the documents are good, but they don’t know what they don’t know, and they definitely won’t know because they’ll be dead when any problems are discovered (“oops, Dad disinherited his grandkids”). Simple wills are not that simple in many instances.
Who finds it pleasant to think about their children being raised by someone else? No one. However, if you don’t tell the court who to appoint as guardian, then a judge you do not know, and who does not know your family, will decide for you. Would your child prefer to have a stranger make that decision? No. This choice is yours to make. Get paper, a pen, and try this approach.
- List everyone who is a possibility as guardian, even a remote possibility. This might include friends. Single people. People with no kids. People with grown kids. People who live far away.
- Next, take the Value Majority test. List five values that are most important to you, and choose candidates from your list who share at least three of these values with you. This is my partial values list as an example to get you started: parenting style; attitude about education, work, money; faith, religion practices, beliefs; social values; attitude about closeness with family, friends.
Now you should have a list of people who rank as good candidates. You should choose at least three. What if you have several people who meet the test and make good candidates, but you wish to shorten your list? Here are some of my observations. First, it can be disruptive to uproot children from everything that is familiar to them, so if Joe lives in your area but Jane lives across the country, choose Joe. Second, a court might not approve a person you designate who has a history involving alcohol or drug addiction, or a criminal record, even if they do share three out of five of your values. Third, please do not name married couples. Divorce happens to the seemingly best couples, and you do not want your child caught up in a custody battle. If Mike and Carol Brady both share your values and made your list, choose one as guardian, the other as successor guardian. Fourth, choose candidates who are likely to keep your children in touch with your family.
Trying this approach should result in at least a few guardian possibilities. This issue is difficult to think about, but thinking about it is exactly what needs done.
Contact me at email@example.com if you want to get started on a will to name your guardians.
- You have no estate plan! I cannot think of a reason why any adult should not have at least a Last Will and Testament, durable power of attorney, and advance directives (healthcare documents: living will [do you want artificial life support?] and healthcare power of attorney). If you die or become incapacitated without having any of these documents, state law controls what will happen, not you (through your documents) or loved ones. This could cause unnecessary and unexpected costs, delays, and loss of privacy.
- If any of these have occurred to you or, if married, to your spouse: marriage, death, birth, divorce, second marriage. These occurrences call for a review of your estate plan. Not reviewing your will and/or trust after any of these events could lead to unintended beneficiaries or fiduciaries.
- Speaking of fiduciaries…review the people you designate as fiduciaries in your documents, such as executor of your will, trustee of your trust, guardian of your children, agent in your powers of attorney, to name a few. Are they still alive? Are they still capable of serving? Do you still want them to serve?
- Review your beneficiaries. Review who you listed to inherit from you. Are they still alive? Do you still want to bequeath to them, or add additional beneficiaries? You should definitely review life insurance and retirement plans and other assets that have beneficiary designations, since the person you name on such a designation will inherit regardless of what your estate plan states.
- Your current plan is more than a decade old. There have been many tax and other changes that could affect older plans, but a major change with my practice is that my clients now plan for their “digital assets.” What happens to your pictures on Shutterfly, or your Facebook and LinkedIn accounts? What happens to money in your etsy or ebay store’s PayPal account? Do you want your spouse to have access to your Facebook account at your death? Or your emails? These “assets” should be reviewed, and you should consider what you want to happen to them at your death.
- Trust funding. There have been so many people who have created a trust plan but did not fund the trust, which meant at death the trust was useless. You must fund a trust, which means you put assets into the trust—typically by re-titling or deeding assets from you personally, to you as trustee of your trust. You can fund while living, or set it up so that this funding occurs at your death.
- Beneficiary becomes disabled. If a beneficiary has become disabled, or you wish to provide for a beneficiary who is disabled, then it is paramount that you discuss special needs planning, such as a special needs trust, with your attorney. Leaving assets directly to a disabled beneficiary could jeopardize certain benefits they might receive, such as Medicaid.
If you would like to discuss your estate plan, contact me at firstname.lastname@example.org.