Guardianships / Conservatorships
A guardianship is necessary for those who cannot provide or take care of themselves. Generally, for minor children without parents and incapacitated adults over the age of 18, a court will appoint a competent adult guardian to provide for and make needs-based decisions regarding living arrangements, medical treatment, education, etc.
A conservator is appointed to control the assets of an incapacitated adult or minor child. By designating successor fiduciaries and agents, we provide protection for our clients in the event of incapacity. For those without such estate planning mechanisms in place, we can help establish the necessary court-supervised conservatorship of the estate.
At Oracle Law Group, we will help you determine when such a guardianship or conservatorship might be necessary and prepare the necessary paperwork to establish the guardianship or conservatorship. We can also provide ongoing advice to guardians and conservators as the need arises.
A Last Will and Testament is a legal document which provides instructions for disposing of your estate. Generally, a will appoints an executor who will carry out your wishes and distribute your assets. Wills also provide for a guardian if you have minor children when you pass away. If you pass away without a valid will, a court will appoint an executor and a guardian for your children. Also, without a valid will, it may take longer and be more expensive for your family to finalize your estate. The pain of losing you should not be compounded, any more than necessary, by the stress of finalizing your estate. Whatever your situation may be, if you prepare ahead of time, your estate will be divided and your loved ones provided for according to your wishes.
While a will provides your instructions upon your death, it does not avoid probate. Not everything you own will go through probate. Jointly-owned property and assets that let you name a beneficiary (life insurance, IRAs, 401(k)s, annuities, etc.) are not controlled by your will and usually will transfer to the new owner or beneficiary without probate, unless there is a dispute or a legal issue with the transfer. However, any other assets titled in your name or directed by your will must go through probate before they can be distributed to your heirs. For these reasons a revocable living trust is preferred by many families and professionals. It can avoid probate at death, prevent court control of assets at incapacity, and bring all of your assets (even those with beneficiary designations) together into one plan. Unlike a will, a trust does not have to die with you. Assets can stay in your trust, managed by the trustee you selected, until your beneficiaries reach the age you want them to inherit. While a living trust initially is more expensive than a will, because it can avoid court interference at incapacity and death, many people consider it to be a bargain.
Other trust devices, including irrevocable trusts, can be combined to provide for or protect your loved ones after you are gone. You can have a trust that provides for a loved one with special needs. You can have a trust that protects the assets from your beneficiaries’ creditors, spouses, and irresponsible spending. You can have a trust that will help reduce or eliminate certain estate taxes. And, the list goes on. Contact us to discuss the ways in which a trust may be tailored to meet your estate planning needs.
Powers of Attorney
A Power of Attorney is a document which allows you (the “Principal”) to give the power to another person (the “Agent”) to do certain things or perform certain acts which you would normally do for yourself. The law permits one to delegate very broad powers to another using a Power of Attorney.
A Durable Power of Attorney is one that remains in effect, or only becomes effective, if and when you become disabled or incompetent. Without clear “durability” language in your power of attorney, it generally will be considered void in the event of your disability or incompetence. In other words, a property drafted Durable Power of Attorney allows you to appoint someone to act on your behalf in the event that you become disabled or incompetent.
Like a Durable Power of Attorney, a Health Care Power of Attorney remains in effect or becomes effective when you are incapable of making decisions related to your medical care. However, unless the document includes specific limits, your health care agent will have broad authority to make any health care decision you could normally make for yourself. This includes decisions about artificial administration of food or fluid.
A Living Will is a written statement that expresses your wishes about medical treatment that would delay death from a terminal condition. It also applies to medical treatment if you are in a persistent vegetative state or irreversible coma. A Living Will sets forth your wishes in the event that you are unable to communicate. Although it gives direction and guidance to others, it is not as broadly applicable as a Durable Health Care Power of Attorney. For example, a Living Will does not permit health care providers to stop tube feeding once it has begun. For this reason, we recommend that you have both a Health Care Power of Attorney and a Living Will to ensure that you end-of-life wishes are followed.