Month: October 2015

A good time to take action

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Do the words “wills”, “trusts,” “estates,” and “health care directives” make you think of tools that help protect your family and your wishes if death or incapacity strikes?  Or do you ignore those words, thinking they don’t apply to little old regular you?

October 19th-25th, 2015 marks National Estate Planning Awareness Week.  This week is to spread the word that estate planning is for everyone.  A young parent just starting out, a hard working middle ager realizing you are not immortal after all, a wealthy entrepreneur or a senior citizen looking at finite resources, estate planning provides a solid legal foundation for protecting your family, your financial security, your wishes and your independence through all of life’s transitions.

Prepare and Protect Your Family:  If you have minor children, estate planning allows you to appoint the people you want to raise them in the event of your unexpected death or incapacity.  Trusts allow you to protect minor children, or even adult children, who may not be prepared to receive a large sum of money after you die.  Health care directives and powers of attorney make it easier for your family to manage  medical and financial affairs during a health care crisis or unexpected incapacity.  And of course, estate planning keeps your loved ones from unnecessary court and legal fees, and the worst of family feuds during the emotional time of loss.

Distribute and Maximize Finances:   For both large estates and modest ones, estate planning ensures that more of your money goes to your family after your passing. Proper estate planning can also help senior citizens and baby boomers qualify for Medicaid and additional VA Pension Benefits for health care without becoming impoverished or “spending down” everything they own. Some professionals such as physicians and contractors also look to estate planning to shield their personal assets from lawsuits, creditors and other risks associated with their occupations. And families with children who have special needs can provide money for their care without jeopardizing access to government benefits.

Define Your Legacy:  Do you have assets you wish to leave to certain people? Are you in a non-traditional relationship or blended family and want to ensure your loved ones are taken care of and share in your inheritance after you are gone? Is there someone you trust to make important medical or financial decisions on your behalf if you are unable to do so?   Without an estate plan in place, all of these personal decisions will be made by the courts if the unthinkable happens. This is why estate planning is such an important strategy in making sure your wishes are known and honored if tragedy strikes.

Your Peace of Mind:  With a well thought out estate plan in place, you have less to fear about the future – both for your own well being and that of your family members. Tools such as living trusts, powers of attorneys, insurance policies and health care directives can help you fund your future care needs and carefully design the life and independence you wish to enjoy during your later years.

Awareness is not enough—Take ACTION!

National Estate Planning Awareness Week is a great way to help more people become aware of estate planning and its role in  protecting your financial future and the people you love—the information is useless if you don’t take action!

Attorneys spend their days thinking of the worst that can happen, but its true that none of us ever know when our time will be up. Estate planning should  be taken care of early and often.  Make a plan and keep it up to date so that if an unexpected illness or accident happens, you won’t have lost out on the planning options once available to you.

Call for an appointment to discuss your own personal needs now.

Special needs trust webinar

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If you’re still trying to figure out what a special needs trust is, whether you need one, or what to do after you have it, register for the online webinar that will give you answers to everything you can think of and more.  Tuesday, October 20, 2015, two times to choose from – noon central time and 8pm central time.  45 minutes jamp packed with information.  Register here for

The Ins and Outs of Special Needs Trusts: why and how to leave money that will pay for the things that make life good for your special needs child.

Power of attorney is alternative to guardianship for elderly persons, not young adults with developmental disabilities

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ID-10067073One of the most common questions I get from parents of teenagers and young adults with special needs is whether they should do a guardianship or a power of attorney.  Powers of attorney are frequently talked about as alternatives to guardianship, but in reality, it’s not that black and white. For elderly people, a power of attorney can head off the need for a guardianship.  But for people with developmental disabilities, it’s a very different story.

A guardian is a person appointed by a court to care for an incapacitated person.  The legal description of incapacity in Texas law is: An adult who, because of a physical or mental condition, is substantially unable to provide food, clothing or shelter for himself or herself, to care for his or her own physical health, or to manage his or her own financial affairs.  Other states will have slightly different, but similar definitions.

A power of attorney, on the other hand, is an appointment by an individual of someone to handle that person’s affairs on their behalf. The person signing the power of attorney must NOT be incapacitated, or the power of attorney appointment is not valid.  In other words, the person signing the power of attorney must be able to fully understand the nature of the document and its consequences.  A durable power of attorney means that once you sign it, it will continue to be effective until you revoke it, even if you subsequently become incapacitated.

Powers of attorney are extremely useful in avoiding the need for a guardian in elderly people who develop dementia or other conditions that cause them to be legally incapacitated.  As long as they have signed a durable power of attorney before the incapacitating condition occurred, the person they named in the power of attorney will be able to handle their financial and other affairs without having to go to court and seek guardianship.

Although there are many reasons to have a power of attorney, one of the most important ones is so that in case you become disabled later in life, someone will be able to take care of you without anyone having to go to court and spend the time and money to get a guardianship.

For children with developmental disabilities, that’s not a possibility.  Unlike an adult who becomes disabled later in life, a child who is born with or who is diagnosed with a developmental disability and who meets the legal definition of incapacity,  has never had a time when they were not incapacitated.  Therefore, there is never a time when they have the capacity to sign a power of attorney. There was never an in case for them.  For children with a developmental disability who cannot care for themselves when they turn 18, guardianship is the only option.

Of course, not all young adults with a developmental disability are unable to understand and handle their own care.  If they are not legally incapacitated, then a power of attorney is completely appropriate so that they can name someone that they want to be able to help them with their affairs.

The decision whether to seek guardianship or a power of attorney is not an either/or situation for a young person with a developmental disability.  If they are incapacitated, they cannot legally create a power of attorney.  And if they are not incapacitated, then they are not in need of a guardian.  The question is not whether to have a guardian or a power of attorney, but rather the question is whether they are legally incapacitated or not.

What you do for your child when they turn 18 is dependent on your child’s individual abilities and level of functioning.  If it is not clear, begin discussing this with your child’s doctor’s in the year prior to their 18th birthday.