Estate Planning & Living Trusts
Helping clients accomplish sound financial planning through a carefully drafted estate plan is our goal. Effective estate planning requires careful attention to the needs and long-term goals of each client to ensure that the plan established works now and in the future.
Equally important to this process is our understanding of the tax consequences of various financial transactions and thorough knowledge of the probate system. Whether the client requires a simple will to transfer property at death, or a complex financial plan that allows for the gradual distribution of assets to family members, charitable organizations or other beneficiaries, our firm can ensure that the outcome is what was intended.
Guardianship
The law presumes that every adult is capable of making his or her own decisions, unless a court determines otherwise. If an adult becomes incapable of making responsible decisions due to a mental disability, a court has the power to appoint a substitute decision maker called a "guardian" (who in some states is called a "conservator" or a similar term). Guardianship is a court-supervised legal relationship between a competent adult (the "guardian") and a person who because of incapacity is no longer able to take care of his or her own affairs (the "ward").
A guardian can be authorized to make legal, financial and health care decisions for the ward. Depending on the terms of the guardianship and state practices, the guardian may or may not have to seek court approval for various decisions. In many states, a person appointed only to handle finances is called a "conservator."
Oftentimes, incapacitated individuals can make responsible decisions in some areas of their lives but not others. In such cases, the court may give the guardian decision-making power over only those areas in which the incapacitated person is unable to make responsible decisions (a "limited guardianship").
Incapacity
Laws defining when a person requires a guardian vary from state to state. In some states, the standards are different depending on whether a complete guardianship or a conservatorship over finances only is being sought. However, a person is generally considered to be in need of guardianship when he or she shows a lack of capacity to make responsible decisions.
A person can't be declared incompetent simply because he or she makes irresponsible or foolish decisions. The person must show a lack the capacity to make sound decisions. For example, a person may not be declared incompetent simply because he or she spends money in ways that seem odd to someone else. Also, a developmental disability or mental illness is not, by itself, enough to declare a person incompetent.
The Guardianship Process
In most states, anyone interested in a proposed ward's well-being can request a guardianship. Usually, a lawyer is hired to file a petition for a hearing in the probate court in the proposed ward's county of residence. Protections for the proposed ward vary greatly with from state to state, with some simply requiring that notice of the proceeding be provided and others requiring the proposed ward's presence at the hearing. The proposed ward is usually entitled to legal representation at the hearing, and the court will appoint a lawyer if the allegedly incapacitated person cannot afford one.
At the hearing, the court attempts to determine if the proposed ward is incapacitated and, if so, to what extent the individual requires assistance. If a determination is made that the proposed ward is indeed incapacitated, the court then decides if the person seeking the role of guardian will be a responsible guardian.
A guardian can be any competent adult -- the ward's spouse, another family member, a friend, a neighbor or a professional guardian (an unrelated person who has received special training). A competent individual may nominate a proposed guardian through a durable power of attorney in case she ever needs a guardian.
The guardian need not be a person at all -- it can be a non-profit agency or a public or private corporation. If the court finds a person is incapacitated and a suitable guardian can't be found, courts in many states can appoint a public guardian, a publicly financed agency that serves this purpose.
In naming someone to serve as a guardian, courts give first consideration to those who play a significant role in the ward's life -- people who are both aware of and sensitive to the ward's needs and preferences. If two individuals wish to share guardianship duties, courts can name co-guardians.
Estate Planning and Legal Help for the LGBT Community
Without proper planning, you might have no rights when your partner really needs you. The need for an estate plan is critical in case of an accident or illness that renders the partner incapable of making decisions or managing his or her affairs. Without it, the other partner could be legally precluded from having any role in the decision-making of his or her partner's care, managing his or her affairs, or even having access to the incapacitated partner.
An LGBT couple can avoid numerous problems through proper estate planning with The Law Offices of Neill & Moody:
The Law Offices of Neill & Moody can also assist with other LGBT legal needs including name/gender change on divorce papers online, disposition of remains, powers of attorney, and more.
Helping clients accomplish sound financial planning through a carefully drafted estate plan is our goal. Effective estate planning requires careful attention to the needs and long-term goals of each client to ensure that the plan established works now and in the future.
Equally important to this process is our understanding of the tax consequences of various financial transactions and thorough knowledge of the probate system. Whether the client requires a simple will to transfer property at death, or a complex financial plan that allows for the gradual distribution of assets to family members, charitable organizations or other beneficiaries, our firm can ensure that the outcome is what was intended.
Guardianship
The law presumes that every adult is capable of making his or her own decisions, unless a court determines otherwise. If an adult becomes incapable of making responsible decisions due to a mental disability, a court has the power to appoint a substitute decision maker called a "guardian" (who in some states is called a "conservator" or a similar term). Guardianship is a court-supervised legal relationship between a competent adult (the "guardian") and a person who because of incapacity is no longer able to take care of his or her own affairs (the "ward").
A guardian can be authorized to make legal, financial and health care decisions for the ward. Depending on the terms of the guardianship and state practices, the guardian may or may not have to seek court approval for various decisions. In many states, a person appointed only to handle finances is called a "conservator."
Oftentimes, incapacitated individuals can make responsible decisions in some areas of their lives but not others. In such cases, the court may give the guardian decision-making power over only those areas in which the incapacitated person is unable to make responsible decisions (a "limited guardianship").
Incapacity
Laws defining when a person requires a guardian vary from state to state. In some states, the standards are different depending on whether a complete guardianship or a conservatorship over finances only is being sought. However, a person is generally considered to be in need of guardianship when he or she shows a lack of capacity to make responsible decisions.
A person can't be declared incompetent simply because he or she makes irresponsible or foolish decisions. The person must show a lack the capacity to make sound decisions. For example, a person may not be declared incompetent simply because he or she spends money in ways that seem odd to someone else. Also, a developmental disability or mental illness is not, by itself, enough to declare a person incompetent.
The Guardianship Process
In most states, anyone interested in a proposed ward's well-being can request a guardianship. Usually, a lawyer is hired to file a petition for a hearing in the probate court in the proposed ward's county of residence. Protections for the proposed ward vary greatly with from state to state, with some simply requiring that notice of the proceeding be provided and others requiring the proposed ward's presence at the hearing. The proposed ward is usually entitled to legal representation at the hearing, and the court will appoint a lawyer if the allegedly incapacitated person cannot afford one.
At the hearing, the court attempts to determine if the proposed ward is incapacitated and, if so, to what extent the individual requires assistance. If a determination is made that the proposed ward is indeed incapacitated, the court then decides if the person seeking the role of guardian will be a responsible guardian.
A guardian can be any competent adult -- the ward's spouse, another family member, a friend, a neighbor or a professional guardian (an unrelated person who has received special training). A competent individual may nominate a proposed guardian through a durable power of attorney in case she ever needs a guardian.
The guardian need not be a person at all -- it can be a non-profit agency or a public or private corporation. If the court finds a person is incapacitated and a suitable guardian can't be found, courts in many states can appoint a public guardian, a publicly financed agency that serves this purpose.
In naming someone to serve as a guardian, courts give first consideration to those who play a significant role in the ward's life -- people who are both aware of and sensitive to the ward's needs and preferences. If two individuals wish to share guardianship duties, courts can name co-guardians.
Estate Planning and Legal Help for the LGBT Community
Without proper planning, you might have no rights when your partner really needs you. The need for an estate plan is critical in case of an accident or illness that renders the partner incapable of making decisions or managing his or her affairs. Without it, the other partner could be legally precluded from having any role in the decision-making of his or her partner's care, managing his or her affairs, or even having access to the incapacitated partner.
An LGBT couple can avoid numerous problems through proper estate planning with The Law Offices of Neill & Moody:
- A Living Trust can establish the client's domestic partner as the trustee (manager of the client's affairs) if the client becomes incapacitated through illness or accident.
- The Health Care Power of Attorney can also avoid the potential problems of the client not maintaining control over his or her health care decisions and the domestic partner not having access to his or her partner during a period of incapacitation.
- A proper estate plan will ensure the client's assets are distributed to whom he or she wants, when and how he or she desires.
- The Living Trust guarantees privacy, through avoidance of probate and its process of opening court records. This would be beneficial for any clients and their domestic partners who wish for their relationship to remain confidential.
- Proper estate planning assures that any surviving minor children are raised by the person designated in the plan.
- Finally, although there are no spousal benefits for LGBT couples (compared to those of heterosexual married couples) proper estate planning will ensure correct strategies are used to avoid penalties, extra taxation when possible, and the court and attorney costs of probate.
The Law Offices of Neill & Moody can also assist with other LGBT legal needs including name/gender change on divorce papers online, disposition of remains, powers of attorney, and more.