Understanding guardianships is critical to anyone who is planning for the life of their child or dependents after they are gone. And while no one likes to think about what will happen then, planning now can help you to avoid any potential risks your loved ones may have to deal with later on.

Understanding Guardianships

A guardianship is a court supervised proceeding in which those who are minors or those who are adults unable to make their own decisions are considered for placement with friends or family if their current guardian or parent dies. The guardian is court appointed, which means that the guardian is appointed without any input from parents, usually because the parents left behind no specific instructions for what should happen in their absence.

In a guardianship, the guardian will manage the assets and well-being of the minor or dependent children. This process is far more complex than other methods available, though. For example:

• A guardianship requires annual accountings of the assets of the dependents
• Limitations on decision making to some level occur
• Bond requirements are often in place
• Restrictions on how money can be spent or invested for the benefit of the dependent are in place
• More lawyer and court involvement in the lives of the minor or dependents is common.

There are ways to avoid this from occurring though, and that is something many parents are striving to do. If there is no trustworthy person that is available to take care of your children then a guardianship may be the best option for your child, but with activities and assets monitored and under court control, this is not the right option for many.

How Trusts Offer Protection

One of the best ways to avoid the effects of a guardianship is to develop a trust before you die, so that you have the last say in what happens with your children should you be unable to care for them. There are several factors to consider:

• In a typical trust for adult children, it allows for the assets you have to move to your children without any risk of the court limiting access. A living trust, the child manages his or her assets without any guardian control.

• For minors or dependent children, a testamentary trust can be helpful. This allows you to leave assets to a minor child with a trustee to oversee the trust.

For those who wish to control what happens to their children and dependents after their death, using a trust is often the best route to go. You can leave assets and overall guardianship guidelines behind as part of your will and estate plan. These, when created properly, can protect your loved ones and ensure that they are able to benefit from your estate without the risk of the court becoming involved in their lives. For many parents, knowing their child is protected, long term, is the best route to take to avoid problems down the road should something happen.

It’s a common question we get – is elder law the same thing as estate planning?  The simple answer is no.  Elder law tends to deal more with the specific end of life issues faced by the elderly, while estate planning is a bit more holistic in scope.  However, some of the issues addressed in elder law are often addressed with good estate planning so the two may sometimes overlap.

Given these differences, should you hire an elder law attorney or should you hire one that focuses on estate planning? It depends on your circumstances.  Both are good options to consider and are far better choices than choosing to do it on your own. Understanding the differences can help, but one thing to keep in mind is that most of these professionals can help you to construct the type of document you need to accomplish your goals.

A closer look at elder law

Perhaps the most important thing to know is that in elder law planning, the goal is to plan for your life’s needs prior to death. This means providing for your medical needs, your living expenses and even long-term health care. While estate planning does this as well, it also focuses on your estate after your death, giving you more opportunities to achieve what you hope to before and after your death.

Often, elder law focuses primarily on the prior to death laws. This may include providing you with help and guidance for things like:

• Nursing facility care
• Care if you become disabled or incapacitated
• Care including conservatorships and guardianships
• Disability planning resources

In short, with elder law you are planning for those years prior to your death, in case something happens that leaves you unable to make decisions yourself or when you need help to ensure your wishes are carried out when you cannot state what those wishes are.

Differences with estate planning

Estate planning attorneys can help with the creation of plans prior to death as well, especially in terms of planning for the monetary aspects of these needs. When you are working with an estate planning attorney, though, you are often going to focus specifically on your goals for long-term estate planning. Not only will this plan help to provide for your needs up until your death, but also after your death as well. It is often more of a comprehensive plan for all of your needs.   Estate planning may also include things like trusts and guardianships as well as advanced medical directives which help address these other important issues.

Elder law or estate planning, the decision is up to you based on what your goals are. However, most parties can meet all of your goals overall, not just one or the other. Take the time to consider what you need and want from your estate plan. Contact a professional to help you to make it happen and get it in place. It is never too late to make key decisions that will affect your life and your heirs.

We’ve all seen the commercials where the family is gathered around an attorney’s desk listening to the reading of a loved one’s last will and testament, only to find out they gave everything away to some frivolous person or cause.  We all know that the next step is everyone in the room wants to contest a will, but have you ever wondered exactly how that works and what the potential outcome might be?

Basics of contesting a will

Contesting or challenging a will is a legal step taken to request that the court take a closer look at a will of a deceased person, to ensure it is legally binding. It can be a costly process in some cases and it can take time. However, if there are errors in a will, or the document is not legally binding in another way, this process allows the court to order the will not valid, thus allowing the process to go through the probate court.

Protecting your last wishes

If you are in the process of planning or creating a will, it is a good idea to ensure your will is iron clad, legally, to avoid such occurrences. If you are facing a will that you do not believe should be allowed to be upheld, working with an experienced estate planning attorney can help you to get it voided. The person who believes that a will is invalid for some reason will need to file a petition that outlines the reason for this.

Some of the reasons why the court will agree to the contesting include the following.

• The person who writes the will (called the testator) does not have the mental capacity or the competency to make decisions for him or herself.
• The will does not meet all requirements set forth by state law, including all statutory requirements.
• The will is not signed by the testator.
• The testator is under undue influence when writing the will, (being pressured into creating the will in a specific way.)

Potential outcomes

For anyone to contest the will, that person must show how one of these situations has occurred. This can be very difficult to do and in some cases, it is not possible. If the objections to the will are agreed to be heard, the court will open the will, examine the specifics of the charges and will make a decision about how to proceed. Even when the contestant (the person who is questioning the authenticity of the will) gets the court to open the will for examination, it is not always possible for the reason to be proven.

It is a good idea to consider the ramifications of contesting a will before you do so. It is time consuming and costly. If you decide to go forward with this process, it is best to work with a trusted attorney that specializes in estate planning and will contesting. This gives you the best opportunity to avoid the risk of not winning the case.

Naming guardians and assigning responsibilities

Most parents, especially those with small children, have thought about who they want to take care of their children if they were no longer able to do so. While it is not a pleasant thought, this issue is extremely important.

If you have yet to name the guardian for your child in an official legal document, it is important to do this promptly to ensure that your children are left in the care of a person that you trust with this significant responsibility.

If one parent becomes incapacitated, an official guardianship and trust is not necessary to ensure that the other parent retains guardianship and custody of the child or children. Under the laws of the United States and Virginia, this is the normal procedure for guardianship. For this reason, establishing who will function as the guardian of one’s children is generally a choice made by both parents for the unlikely situation in which both parents are unable to take care of their children.

Who should be named a guardian?

Deciding who will be the guardian of your child is a major decision. There are many important factors to weigh in this decision making process as this person will not only provide for your children materially but also make important choices regarding the child’s education and healthcare.

When considering a potential guardian, factors to consider include their age, their physical limitations, time limitations, if they have children near the age of your child, and if they share the beliefs that you have both in relation to child rearing and values.

Whomever you choose for this significant role, it is a good idea to discuss your selection with that individual so they have an opportunity to ask any questions or clarify any concerns. Also, you may want to choose both a guardian and an alternate for each of your children.

What are the guardian’s responsibilities?

This is an area that is often confusing to those selecting a guardian. The guardian is the person who will be responsible for the physical well being of your minor children.  He or she will make decisions with respect to many aspects of your children’s lives, including housing, education and medical care.  The guardian’s responsibilities do not, however, include management of your children’s financial assets or the control of any trust that you create, including any trusts of which your children beneficiaries.  Those responsibilities are handled by a trustee.

The person whom you designate as guardian does not need to be the same person designated as either trustee or executor.

Choosing a guardian is a significant decision. When you need help drafting the documents that will enforce this decision turn to the law firm you can trust and call Flanders and Wade today.