Understanding the differences between ABLE Account and Special Needs Trust

June 3, 2024

Planning for the financial future of a loved one with special needs is crucial. Two essential tools in special needs planning are ABLE accounts and Special Needs Trusts (SNTs). Understanding the differences between an ABLE Account and Special Needs Trust will help you make the right choice.

An Achieving a Better Life Experience (ABLE) account is a valuable tool for people with disabilities. As Special Needs Answers reports, they can use it to save up to $18,000 annually starting in 2024. Unlike other accounts, this doesn’t deprive people of means-tested benefits.

ABLE account holders can save up to $100,000 tax-free and spend the funds on disability-related expenses. This covers assistive technology, transportation, education and even leisure activities. Account administration occurs at the state level, and eligibility is set to expand. While anyone disabled before age 26 qualifies now, the threshold will increase to 46 in 2026.

Likewise, individuals can open and manage their ABLE accounts. This provides much more financial independence than a Special Needs Trust (SNT).

A Special Needs Trust (SNT) is a legal document that provisions funds for disabled loved ones. Like the ABLE account, these funds don’t impact eligibility for Medicaid or SSI. An SNT can pay for items that government benefits don’t cover, including therapy, medical care, recreation and travel.

However, there are some limits. Without affecting benefits, SNTs generally can’t be used for essentials, like food and shelter. A Special Needs Trust also can’t cover cash payments or gift cards. Unlike an ABLE account, a trustee manages the SNT. This trustee works with special needs planners to maximize the trust’s value.

One of the main differences between ABLE accounts and Special Needs Trusts is their contribution limits. ABLE accounts are capped at $18,000 annually, with a total savings limit of $100,000. SNTs have no set contribution or savings limits but have tighter controls.

An individual manages their ABLE account. In comparison, a trustee manages an SNT in the name of a disabled individual.

Another critical difference is eligibility of the disabled person. For now, ABLE accounts are only available to people who became disabled before age 26. This is in contrast to SNTs, which have no age restrictions. An SNT is ideal for long-term asset management, while ABLE accounts offer flexibility.

Consult with an elder law attorney to have a full understanding of the differences between an ABLE Account and a Special Needs Trust. Choosing between the two depends on your family’s goals and needs. If you’re looking for a quick, easy, flexible way to save for a loved one’s disability-related expenses, an ABLE account might be ideal. However, a Special Needs Trust is better for long-term planning with no savings limits.

Key Takeaways:

ABLE Account: Offers flexibility and direct control for disabled individuals, with a $100,000 savings limit.
Special Needs Trust: Offers greater flexibility and long-term security but requires a trustee for oversight.
Planning is a Must: An ABLE Account or SNT may better fit your situation. Either way, you should begin planning sooner rather than later to protect your loved one.
Plan Ahead: Work with an estate planning attorney to decide which tool is best for your family.

If you would like to learn more about special needs planning, please visit our previous posts.

References: Special Needs Answers (Nov. 13, 2023) “ABLE Accounts in 2024: Save Up to $18,000 Annually”

Special Needs Answers (February 12, 2019) “What Can a Special Needs Trust Pay For?”

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Alternatives to Avoid Guardianship as You Age

May 15, 2024

Individuals often overlook strategies in their estate planning to avoid restrictive guardianship if they become incapacitated. While guardianship protects individuals who cannot decide or act for themselves, it can inadvertently strip them of their autonomy. There are alternatives to avoid guardianship as you age.

The restrictive nature of a court-appointed guardian acting on behalf of an impaired individual doesn’t account for that person’s wishes. In a video titled “Alternatives to Guardianship,” The American College of Trust and Estate Counsel (ACTEC) highlights essential guardianship alternatives that preserve a person’s autonomy. This article discusses the need for protection as we age, what guardianship is and how powers of attorney (POAs) are alternative estate planning strategies that give individuals more control over decision-making.

Aging and estate planning go hand-in-hand. Estate plans with strategies that address cognitive decline and incapacity protect you from financial risks, including misuse of assets or unauthorized withdrawals. When it comes to healthcare, individuals must retain control over medical decisions. They may not be honored if you are incapacitated without legally documented healthcare wishes.

Guardianship involves the legal authority granted to a court-appointed guardian to act and make decisions for a person who is physically or mentally incapable. The guardian oversees the person’s health, medical care and property. When an individual is evaluated and deemed incapacitated, a court will assign a guardian.

A guardian’s responsibilities include making personal care decisions, overseeing living arrangements and handling their financial affairs. They are required to keep detailed records and check in with the court regularly. However, guardianships are often appointed without considering alternatives, and they strip an individual of all decision-making authority, including where they live, what they eat and whether they will get any medical care. ACTEC notes that guardianship can be hurtful to the family, in addition to being an expensive process.

A power of attorney (POA) is a legal document that appoints someone you trust to act on your behalf. Only a durable power of attorney is valid if you are incapacitated. There are different POAs to protect your financial interests and medical wishes.

To prevent financial risks if you are incapacitated, a financial power of attorney names an agent with authority over financial matters, such as accessing bank accounts, paying bills and managing retirement accounts, real estate and investments.

A medical power of attorney is a healthcare or advance directive that allows someone else to make medical decisions based on your wishes. Often called a health care agent, this person follows your medical treatment as outlined in the document.

Key Guardianship Alternatives Takeaways:

Common Risks as We Age: Financial loss and unwanted medical care.
Typical Cons of Guardianship: Total loss of autonomy with court-appointed guardians.
Important Benefits of POAs: More control of your wishes and asset protection.

Elder law and estate planning strategies that protect you as you age should not be synonymous with surrendering autonomy through guardianship. Individuals can confidently navigate this terrain by exploring alternatives to avoid guardianship as you age. If you would like to learn more about guardianships, please visit our previous posts.

Reference: The American College of Trust and Estate Counsel (ACTEC) (May 13, 2021) “Alternatives to Guardianship”

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Topics You need to Address before a Mid-Life Marriage

May 8, 2024

Today’s wedding couple is as likely to be 30 or 50 years old as they are to be in their twenties. This trend underscores the importance of having open discussions about finances and retirement before exchanging vows. A recent article from Next Avenue, “The Talk Over-50s Should Have Before Tying the Knot.” Whether you’re getting married for the first time or the second, being closer to retirement has major financial implications. There are topics you need to address before a mid-life marriage.

The most important thing is to disclose each person’s financial situation completely. For some people, this includes their retirement goals and lifestyle choices. What are the potential healthcare issues? Is there debt to be considered? How are each managing their investments?

If both people own homes, a plan for going forward needs to ask a simple question: where will the couple live? Will one sell their home or turn it into a rental property? If it is sold, will the seller retain all the income, or will they buy into ownership of the joint residence? Emotional attachments to homes can make this a difficult discussion, but it needs to be addressed.

Getting married changes each spouse’s legal status, meaning estate plans must be updated. If both have an existing estate plan, it needs to be reviewed. Powers of Attorney, Healthcare Proxy, and other estate planning documents must also be updated.

While reviewing and revising estate plans, don’t neglect to check on any accounts with named beneficiaries. More than a few ex-spouses have received insurance proceeds or accounts because someone neglected to update these accounts. The named beneficiary overrides anything in your will, which is critical to updating the estate plan.

If you both have children from prior marriages, meeting with an estate planning attorney to determine how to manage property distribution is another critical step before getting married. You may wish to create and fund trusts before marriage, so assets remain separate property. There are as many different types of trusts as there are family situations, from keeping assets separate to providing for a surviving spouse while ensuring biological children receive their inheritance (SLAT), or family trusts where assets are moved into the trust for the surviving spouse to allocate assets to heirs based on their needs.

Social Security planning should also be part of the discussion. If one spouse is a widow who was receiving survivor benefits, they could lose those benefits when they get married.

Talk with an estate planning attorney to address these topics before a mid-life marriage. That way you fully understand your situation and ensure you and your spouse are ready for the changes and challenges of your senior years together. If you would like to learn more about mid-life or second marriages and estate planning, please visit our previous posts.

Reference: Next Avenue (March 14, 2024) “The Talk Over-50s Should Have Before Tying the Knot”

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Essential steps for Gen Xers caring for Aging Parents

April 15, 2024

Raising children is expensive. Adding medical or living costs for aging parents is enough to strain even a healthy family budget. The additional expenses of caring for an aging parent or parents can take a turn if a parent passes away or is incapacitated without a will or estate plan to guide the family. An estate plan or other legal documents, such as an advance medical directive and powers of attorney, enable trusted representatives to decide and act according to a parent’s wishes. A proactive estate plan can help alleviate financial burdens and smooth aging parents’ path into retirement for both generations. Here are six essential steps for Gen Xers caring for their aging parents:

Based on Kiplinger’s article, “What Gen X Needs to Know About Their Aging Parents’ Finances,” this article outlines steps in estate planning for your parents’ financial future through retirement and their quality of life as they age.

Understand your parents’ financial landscape. Identify their assets, including retirement accounts, investments, real estate and bank accounts. List their debts, from home mortgages to credit card balances—a comprehensive view of their financial health aids in planning their future needs. Consider guidance from an estate planning attorney for a more customized approach.

Familiarize yourself with your parents’ income sources, such as Social Security, pensions and additional retirement income streams. Know their financial inflows, gauge their ability to cover expenses and plan for any shortfalls effectively.

Ask your parents if they have an estate plan, including wills, trusts and other legal documents outlining their wishes for beneficiaries and asset distribution. If they do, is it comprehensive enough for long-term care, medical decisions if they are incapacitated and Medicaid? Address these topics early and facilitate additional planning, so their wishes are honored.

Anticipate future healthcare expenses and discuss potential long-term care needs with your parents. Do they have health issues and medication costs to save money for? Develop strategies to cover these costs through insurance, savings, or income-producing investments. Planning can mitigate financial stress and provide access to quality care in retirement. Consult an attorney to discuss Medicaid planning and avoid delays in the application process.

Family members worry more about scammers and the misuse of an older adult’s money today than in previous generations. Protect your parents from financial exploitation. Consider living trusts or powers of attorney, authorizing trusted family members to act and decide in your parents’ best interests, if necessary.

Seek guidance from a financial adviser and an estate planning attorney for retirement planning and intergenerational wealth transfer strategies. Collaborate with them to develop comprehensive strategies that address your parents’ financial needs, while safeguarding your retirement savings.

Proactive Gen Xers caring for aging parents can use these essentials steps to alleviate financial burdens and provide peace of mind for both generations. They can support aging parents as they plan for the family’s financial needs and future. If you would like to learn more about caring for aging parents, please visit our previous posts.

Reference: Kiplinger (June 5, 2023) “What Gen X Needs to Know About Their Aging Parents’ Finances.”

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Cognitive Decline is Overlooked in Estate Planning

April 3, 2024

Estate planning is a roadmap for transferring a person’s assets upon their death. It preserves their value and lays out the distribution of assets to the beneficiaries. One overlooked but essential aspect of estate planning is a strategy to manage and maintain an estate’s assets if the owner loses cognitive functioning and cannot make rational or mentally sound decisions. Planning for cognitive decline is often overlooked in estate planning.

A recent case highlighted by Alan Feigenbaum in J.D. Supra’s article “Confronting Cognitive Abilities in Well-Rounded Estate Planning” reminds us of the complexities and challenges that can arise when cognitive decline is not adequately addressed in estate planning.

The case involves an 80-year-old retired advertising executive, referred to as K.K., who suffered from severe delusions. Influenced by a fraudulent business associate, K.K.’s delusions led to misguided investments that resulted in a significant financial loss. Despite the clear signs of cognitive impairment, K.K. continued to engage in financial decisions that jeopardized his estate’s financial well-being.

K.K.’s son filed a petition to appoint him guardian of his father’s estate to prevent further loss. This situation underscores the need for an estate plan that includes managing the assets and protecting the estate’s value, if the individual is cognitively or mentally impaired.

Plan Early and Consider Cognitive Decline: Begin estate planning early and include provisions to carry out plan directives, if cognitive functioning is impaired.
Incorporate Safeguards: Estate plans should have safeguards, such as durable powers of attorney and trusts, which empower trusted individuals to manage your affairs if you become incapacitated.
Regular Reviews and Updates: Review and update your estate plan regularly to reflect changes in circumstances, including health status.
Professional Guidance is Key: Navigate the complexities of estate planning with an experienced estate planning attorney. An attorney will structure your estate plan to address potential cognitive decline.

K.K.’s court case underscores why cognitive decline is overlooked in estate planning. A well-rounded estate plan includes a strategy to protect and manage assets when an individual lacks the cognitive capacity to make decisions. Proactive strategies prevent financial loss and reduce the emotional turmoil when caring for a cognitively impaired loved one. Estate planning gives you the peace of mind that your wishes will be honored, even in mental decline. If you would like to learn more about planning for cognitive decline, please visit our previous posts.

Reference: JD Supra, (March 2024), Confronting Cognitive Abilities in Well-Rounded Estate Planning

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Understanding how a Guardianship and Conservatorship Contrast

February 21, 2024

Guardianship and conservatorship are two legal mechanisms designed to assist individuals who cannot manage their own affairs. While they share similarities, understanding how a guardianship and conservatorship contrast is vital. Guardianship typically pertains to personal and health care decisions, while conservatorship deals with financial matters. Both require court appointment and carry significant responsibility.

Guardianship involves the legal authority granted to a guardian to make decisions on behalf of a person who is unable to do so. This typically pertains to personal, health and welfare decisions. A court appoints a guardian when an individual is deemed incapacitated, and the guardian may have to make a wide range of personal decisions for them. A guardian has significant responsibilities, including making personal care decisions, overseeing living arrangements and ensuring the overall well-being of their ward. They must keep detailed records and report to the court regularly, demonstrating that they are acting in the best interests of the ward.

In cases involving minor children, guardianship becomes essential when parents are unable to provide care. The guardian, appointed by the court, assumes responsibility for the child’s personal needs and welfare, acting in their best interests. This is often seen when parents are unable or unwilling to care for their child or in the event of the death of the parents.

Conservatorship, on the other hand, is primarily focused on financial matters. A conservator is appointed to manage the financial affairs of an individual who is unable to do so themselves, due to incapacity or other reasons. This includes managing a person’s assets, making investments and handling financial decisions. In conservatorship proceedings, the court appoints a conservator to oversee the financial needs of the incapacitated individual. The conservator must act responsibly and is often required to provide the court with periodic financial reports.

While a guardian manages personal and medical decisions, a conservator handles the financial aspects, such as personal and financial records, asset management and financial planning. This distinction is crucial in understanding the roles and responsibilities each holds.

The legal authority granted to a guardian differs from that of a conservator. A guardian makes personal and medical decisions, while a conservator focuses on financial and asset management. This division ensures that all aspects of an individual’s life are cared for adequately. Both guardians and conservators are appointed by the court and must act in the best interests of their wards. They are supervised by the court and must provide regular reports to demonstrate their compliance with legal responsibilities.

Incorporating guardianship and conservatorship into an estate plan is crucial. An estate plan can appoint a guardian or conservator in advance, providing clarity and direction in the event of incapacitation. Including a power of attorney in your estate plan can preempt the need for a court-appointed guardian or conservator. This allows you to choose who will make decisions on your behalf, if you become unable to do so.

An effective estate plan, including wills and power of attorney, can provide peace of mind and ensure that your wishes are honored. It prepares for scenarios where you might be incapacitated, ensuring that your personal and financial matters are in trusted hands. Navigating the complexities of guardianship and conservatorship can be challenging. A lawyer can help you understand how a guardianship and conservatorship contrast. The assistance of an estate planning or elder lawyer is invaluable in understanding your options, the legal process and ensuring that your loved one’s needs are met.

Each situation is unique, and a lawyer can provide tailored advice depending on your specific circumstances. They can help you navigate the legal system, ensuring the best outcome for you and your loved ones. If you would like to learn more about guardianship, please visit our previous posts.

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Navigating Advance Directives in Dementia Care

January 11, 2024

Navigating the complexities of advance directives in dementia care is one of the biggest challenges for caregivers. The concept of advance directives in healthcare is both a cornerstone of patient autonomy and a source of profound ethical dilemmas, particularly in the context of dementia. This was poignantly illustrated in a recent New York Times article by Dr. Sandeep Jauhar, who shares his personal story about his father’s battle with dementia. This article delves into the complexities surrounding advance directives, especially for patients with dementia, and offers guidance for families grappling with these challenging decisions.

Understanding Advance Directives

Advance directives are legal documents that allow individuals to outline their preferences for medical care if they cannot make decisions for themselves. These directives are crucial in ensuring that a patient’s wishes are respected, particularly at the end of life. However, when it comes to progressive conditions like dementia, the clarity of these directives often becomes blurred.

The Dilemma in Dementia Care

Dementia uniquely challenges the concept of advance directives. As Dr. Jauhar describes, the person who made the directive may evolve into someone with different desires and capacities. This transformation raises the question: should we honor the wishes of the person who drafted the directive, or should we consider the current state and apparent desires of the patient?

Ethical Considerations

This situation presents a significant ethical dilemma. On the one hand, there’s the principle of respecting the patient’s autonomy as expressed in their advance directive. On the other hand, there’s the issue of non-maleficence — the duty to do no harm — which could conflict with a directive when a patient seems content in their current condition despite severe cognitive impairment.

The Role of Family and Caregivers

Families and caregivers often find themselves at the heart of this conflict. They must balance respect for the patient’s previously stated wishes with empathy for their current state. Effective communication among family members and healthcare providers is crucial in navigating these decisions.

Legal and Medical Perspectives

Advance directives legally are typically held as the definitive expression of a patient’s wishes. However, the medical community is increasingly recognizing the need for flexibility, especially in the context of diseases like dementia that significantly alter a patient’s cognitive and emotional state.

Rethinking Advance Directives

There’s a growing consensus that advance directives need to accommodate the possibility of changing perspectives, especially for conditions that affect cognitive function. This could involve incorporating specific clauses about cognitive decline or changing desires in the directive.

Practical Advice for Families

Families should approach advance directives as dynamic documents. It’s essential to regularly revisit and potentially revise these directives, considering the patient’s evolving health status and wishes. Open discussions about end-of-life preferences are crucial, as is seeking advice from healthcare professionals and legal experts.

Conclusion

The journey through a loved one’s dementia, as Dr. Jauhar’s story illustrates, is fraught with complexities and emotional challenges. While respecting a patient’s past wishes is crucial, so is recognizing their present state and evolving desires. The balance between these perspectives is delicate but fundamental in end-of-life care.

Empathy, understanding, and open communication remain our most powerful tools as we continue to confront these issues. It’s imperative to not only consider what was desired in the past but also to remain sensitive to the needs and happiness of the patient in their current state.

For those seeking guidance navigating advance directives, especially in the context of dementia care, it is advisable to consult with a local estate planning attorney. These professionals can provide invaluable assistance in drafting and updating advance directives to reflect your or your loved one’s evolving wishes and medical circumstances. Reach out to your local estate planning attorney today to ensure that your advance directives are consistent with your current desires and legal standards. If you would like to learn more about advance directives, please visit our previous posts.

Reference: New York Times – “My Father Didn’t Want to Live if He Had Dementia. But Then He Had It.” by Dr. Sandeep Jauhar.

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Estate Planning for the Sandwich Generation

January 4, 2024

The sandwich generation, a term for individuals juggling the care of their children and aging parents, faces unique challenges. This demographic, typically in their 30s and 40s, is experiencing a rise due to later childbirth and an aging population, compounded by the recent pandemic’s impact on long-term care facilities. Effective estate planning for the sandwich generation is critical in managing these dual responsibilities.

Understanding the Demographics and Trends

Significant societal trends influence the increasing numbers of the sandwich generation. Understanding these trends is essential for tailored estate planning strategies.

The Importance of Estate Planning

Estate planning is crucial for the sandwich generation. It provides a structured approach to managing the complexities of caring for children and elderly parents. This planning can offer peace of mind and a clear path forward in challenging circumstances.

Key Strategies for Effective Estate Planning

Prioritizing and Reprioritizing Responsibilities
- Estate planning for the sandwich generation starts with effectively managing daily tasks. Identifying urgent versus non-urgent tasks can help balance the care of children and elderly parents.
Self-Care as a Crucial Aspect of Estate Planning
- Self-care is vital to avoid caregiver burnout. Individuals in the sandwich generation need to maintain their well-being to provide the best care for their loved ones.
Understanding Legal Rights and Workplace Benefits
- Knowing workplace rights, such as those provided by the Family Medical Leave Act (FMLA), is an integral part of estate planning for the sandwich generation. This knowledge can help caregivers maintain job security, while caring for their families.
Communication and Support Networks
- Open communication within the family and access to support networks and forums are key to managing the expectations and responsibilities of being part of the sandwich generation.
Financial Planning and Resource Management
- A crucial aspect of estate planning for the sandwich generation is evaluating financial resources. This includes understanding the financial capabilities of aging parents and exploring public assistance or family contributions when needed.
Discussions with Aging Parents and Family Members
- Conversations about care preferences and financial abilities with aging parents and family members are essential. These discussions should be part of the estate planning process.

Legal Documents and Decision-Making Powers

Estate planning include preparing legal documents that empower decision-making for aging parents and minor children. Powers of attorney and healthcare directives are examples of such documents.

Preparing for the Future

Long-term considerations, like home renovations for elderly care, professional services and retirement savings, are essential in estate planning for the sandwich generation. Insurance policies and emergency funds are critical to protecting the family’s future.

Regular Review and Update of Estate Plans

The dynamic nature of the sandwich generation’s responsibilities necessitates regular reviews and updates of their estate plans. This ensures that the plans stay relevant and effective in meeting the family’s changing needs.

Conclusion

Effective estate planning for the sandwich generation is essential in managing their complex role. With the right planning and resources, individuals in this generation can provide for their families, while caring for their elderly parents.

If you’re part of the sandwich generation, consider consulting with an estate planning attorney to develop a plan tailored to your unique situation. This step can be pivotal in securing your family’s future and navigating the challenges you face. If you would like to learn more about estate planning for caregivers, please visit our previous posts.

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Tips to protect Seniors from Guardianship Abuse

December 12, 2023

Issues Inherent in the Guardianship System

Elder law attorneys see firsthand the complexities and potential pitfalls of guardianship arrangements. The recent investigation into guardianship practices in Florida, as reported by the Washington Post, underscores the urgent need for vigilance and reform in this area. While guardianships are designed to protect the vulnerable, they can sometimes lead to significant abuses, including forced isolation and financial exploitation. This article aims to shed light on the complexities of the guardianship system, expose issues related to guardian-inflicted elder abuse. It will also provide practical tips to protect seniors from guardianship abuse by planning before becoming incapacitated.

What Is Guardianship?

Guardianship is a legal process where a court appoints an individual (the guardian) to make decisions for someone deemed unable to make decisions for themselves (the ward). This arrangement is often necessary for seniors who can no longer manage their affairs due to health issues like dementia or stroke. It’s estimated that more than one million Americans are in a guardianship, a number that will only grow as the U.S. population ages and elderly people no longer have family living nearby to provide the care and protections they need.

A Cautionary Guardianship Case

Douglas Hulse, a former pilot from Florida, was hospitalized due to a stroke. After his recovery period ended and his condition did not improve, Orlando Health South Seminole Hospital could not discharge him without having an assigned caretaker. Therefore, the hospital petitioned the court to assign him a guardian due to the inability to locate his family. His loss of control over his assets and personal decisions to a court-appointed guardian is a stark reminder of guardianship risks. His guardian, responsible for 19 other wards, made questionable decisions like selling his home without seeking to locate his family.

What Role Do Hospitals have in Guardianship Appointments?

Hospitals often play a significant role in initiating guardianship proceedings. Cases like Hulse’s in which the hospital petitions for a court-appointed guardian are becoming more common nationwide, especially when elderly patients have no known family or friends to care for them. While this process is meant to ensure the patient’s well-being, it can inadvertently lead to the appointment of guardians who may not act in the best interest of the ward or, worse, will exploit the senior ward through financial abuse or other ways.

Why Is the Adult Guardianship System Allowing Abuse and Exploitation of Wards?

The discrepancies in the guardianship appointment and training process further complicate this issue. There is often a lack of standardized procedures for appointing and monitoring guardians, leading to inconsistent practices and an increased risk of abuse. This situation calls for a more rigorous and standardized approach to guardianship appointments at the state level, ensuring that only qualified and ethical individuals are entrusted with such significant responsibilities.

How Do Guardianships Put Seniors at Risk of Abuse?

The Hulse case highlights several risks associated with guardianship:

Loss of Personal Freedom and Fundamental Rights: Once under guardianship, individuals may lose basic rights, such as voting, consenting to medical treatment, managing their finances, or deciding where to live.
Financial Exploitation: Guardians have significant control over the ward’s assets, allowing them to access financial accounts directly and conduct financial transactions without oversight. This access can lead to mismanagement or outright theft.
Lack of Oversight: Guardianships often lack sufficient legal or administrative oversight, allowing unscrupulous guardians to take advantage of their wards. Because a judge appoints guardians, they often do not face punishment or legal recourse for abusive behavior.

How to Protect Yourself From Court-Ordered Guardianship

Advance Planning: The best defense against guardianship abuse is advance planning. This includes setting up durable powers of attorney for health care and finances, which allow you to designate someone you trust to make decisions on your behalf if you become incapacitated.
Regular Monitoring: If guardianship is unavoidable, family members should stay involved and monitor the guardian’s actions. Regularly reviewing financial statements and staying in close contact with the ward can help detect any irregularities.
Choosing the Right Guardian: If a guardian is necessary, choose someone trustworthy and capable. This could be a family member or a professional with a good reputation and credentials.
Legal Oversight: Courts should have robust systems to monitor guardianships. This includes regular reporting by guardians and audits of their financial management.
Awareness and Education: Seniors and their families should be educated about the risks of guardianship and the importance of advance planning. Community programs and legal clinics can provide valuable information and resources.
Advocacy and Reform: Advocacy for better laws and policies around guardianship is crucial. This includes pushing for reforms that increase transparency, accountability and oversight in the guardianship process.

Key Takeaways:

Guardianship can lead to significant abuses, including loss of autonomy and financial exploitation.
Hospitals often initiate guardianship proceedings for incapacitated patients without family, which can lead to inappropriate guardian appointments.
Advance planning, such as establishing durable powers of attorney, helps prevent guardianship abuses.
There is a need for increased legal oversight and reform in the guardianship system to protect the rights and well-being of the elderly.

Utilize these tips to protect the seniors you love from guardianship abuse. Work with an experienced elder law or estate planning attorney to ensure that someone you love does not fall prey to abuse but has a legally documented estate plan to protect them and their financial well-being. If you would like to learn more about guardianship issues, please visit our previous posts.

Photo by Danik Prihodko

Selling the Family Home when a Loved One needs Nursing Care

November 28, 2023

When an aging relative decides the time is right to move into an assisted living or continuing care facility, families face many decisions. This is often a difficult but necessary step for older individuals with trouble living independently or planning for their future needs. Selling the family home when a loved one needs nursing care can be a challenge. A recent article from Herald—Standard, “How to handle selling a home when moving into an assisted living facility,” offers suggestions to help families navigate the process.

First, speak with an estate planning attorney to have a trusted, responsible family member be named Power of Attorney. Individuals moving into assisted living may not have any cognitive problems at the time of the move. However, selling a home for a family member who develops dementia can present complex challenges. Only a person with legal capacity may transfer their home to a new owner. Having a Power of Attorney allows a family member to step in and manage the transaction without needing to go to court and have a guardian named.

Talk about the situation and the sale with the aging family member. They will need time to process the idea of selling their home and moving. Homeowners make untold sacrifices and compromises to buy and maintain their homes, so the decision to sell a beloved home is almost always very difficult and brings out a range of emotions.

Throughout this process, an open and honest dialogue about what can be achieved by selling the home and improving their quality of life will be helpful.

Sorting through belongings is an extremely hard task. A lifetime of memories and a loss of their independence are all wrapped up in the contents of a home. It will be impossible to take the entire contents into a one or two-bedroom apartment. Take the time to sort through belongings with your family members and select certain items to give them a sense of home in a smaller space.

If possible, try to pass on some items to younger family members. Most importantly, handle this process with as much compassion as possible.

Keep all relevant people involved and current throughout the process. This is particularly important if the family members are scattered in different states. Adult children who live far away and can’t be active participants in this process shouldn’t be dismissed and left out. Open communication with other family members will minimize the chances of objections when the sale and move take place.

Finally, because this is perhaps the largest and last financial transaction, make sure the sale of their home is done with an eye to their estate plan. Selling the family home when a loved one needs nursing care may cause tax issues. There may be ways to minimize tax exposure for the individual and their estate plan. Confer with an estate planning attorney to avoid any missteps. If you would like to learn more about managing property in your estate plan, please visit our previous posts.

Reference: Herald-Standard (Oct. 27, 2023) “How to handle selling a home when moving into an assisted living facility”

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Category: Disability

Understanding Advance Directives

The Dilemma in Dementia Care

Ethical Considerations

The Role of Family and Caregivers

Legal and Medical Perspectives

Rethinking Advance Directives

Practical Advice for Families

Conclusion

Understanding the Demographics and Trends

The Importance of Estate Planning

Key Strategies for Effective Estate Planning

Legal Documents and Decision-Making Powers

Preparing for the Future

Regular Review and Update of Estate Plans

Conclusion

Issues Inherent in the Guardianship System

What Is Guardianship?

A Cautionary Guardianship Case

What Role Do Hospitals have in Guardianship Appointments?

Why Is the Adult Guardianship System Allowing Abuse and Exploitation of Wards?

How Do Guardianships Put Seniors at Risk of Abuse?

How to Protect Yourself From Court-Ordered Guardianship

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