Guardianship Elements

This is a third post in a series on Guardianship.  For an introduction to the concept of Guardianship, please start here. For more information on Guardianship of a Minor, see post #2.

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If you've noticed that an elderly or ill loved one is increasingly unable to care for themselves, or perhaps you've spent the past 17 years raising a child with special-needs and see their 18th birthday on the horizon, you're likely wondering .... how do I go about getting one of these fancy Guardianships?

For a court to award a guardianship, there are two broad questions that must be answered.

1.  That a guardianship is needed.  In legal speak, we say that the ward is 'incompetent'.  
2.  That a particular person is qualified and the best person to be the guardian.  


Competence:

In a childhood guardianship (which occur when the 'typical' caregivers, parents, of a child between birth and 18 years old are unable to meet the child's needs) the child is incompetent "by virtue of his minority".  This means, we assume someone under the age of 18 can't meet the responsibilities of self-reliance and is in need of a qualified other to do so.

Adult Guardianship are different.  Here the presumption is that anyone over the age of 18 IS able to handle their own affairs.  Most states (including Arkansas) require an affidavit or testimony from a medical professional that includes a professional assessment of the abilities of the ward and the impact of any impairments on the ward's capability to meet the essential requirements for his or her health or safety (health care, food, shelter, clothing, and protection without which serious illness or serious physical injury will occur) or to manage his or her estate (i.e. take car of her money and finances).  

A Judge may require testimony and the submission of evidence to explore fully whether the proposed ward is able to make decisions and provide care for themselves and to what extent.  

Guardian Qualification

To be a Guardian in Arkansas, you must be:

• over the age of 18
• have not been convicted of a felony
• be of sound mind - meaning you can't need a Guardian yourself

In most cases, the individual seeing Guardianship is either a parent or child of the proposed ward.  In the case where an elderly or ill person is in need of a Guardian and has multiple children, the court must make a determination which is most qualified based on a number of considerations beyond this blogs scope.  If your child with special-needs is turning 18 and there isn't another parent to contest your desire to continue providing care into the child's adulthood, courts will likely grant Guardianship to you as the parent.  

Guardianship of a Minor

This is a second post in a series on Guardianship.  For an introduction to the concept of Guardianship, please start here.

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In contrast to Adult Guardianship, Minor Guardianship is necessary when the presumed responsible parties for a child is or becomes unable to meet the needs of caring for their child.  Generally this happens when parents face illness, addiction, or incarceration. 

Minor Guardianship is different from Adoption in that the legal parents of the child do not change.  This can be preferable for a number of legal and social reasons, but may not be in every family circumstance.  I'm happy to discuss these nuances if applicable one:one. 

To seek guardianship over a minor, courts will need to answer 3 questions -

1. Is the child incapacitated
• the answer here is always yes "by virtue of their minority" 
2. Does the child need a guardian?
• our legal system already has a presumption in place for caring for minor children - it is the natural or adoptive parent's job.  If a guardianship is being sought, the court will need to understand why the need to deviate from this norm.  
3. Who is the best suited to be guardian?
• Options I've seen in my practice include 
• siblings of the natural parents
• parents of the natural parents (so grandparents of the child)
• aunts/uncles of the natural parents - this happens more frequently when there are generational age gaps meaning the aunt/uncle are at a more 'typical' child-rearing age.
• members of the parent's religious or social community
• Note that who you might chose to care for your children in the case of future incapacity might not be the same as a court would choose ... plan ahead, write a will!  

Guardians of Your Galaxy

My spouse recently introduced me to the movie series "Guardians of the Galaxy".  I tend to be pretty up-to-date on changes in the law and pretty behind-the-times on popular culture.  As a result I assume you, my readers, are ahead of me and familiar with these movies and perhaps their underlying comic book series. In case this assumption is wrong, it follows the exploits of a team of misfits who serve to protect and defend the galaxy (aka: space) from any and all threats.

The Galaxy is a pretty big place!  

Legally, the job of a Guardian is similar.

At birth, culturally we assume that a new baby is not responsible for itself.  In most cases, pre-determined folks called parents are tasked with ensuring that the new baby is fed, clothed, receives medical care, and financially secure.  (Of course, there are exceptions which are outside the scope of this explanation).  This period of other-reliance legally lasts for 18 years and naturally ends at a person's 18th birthday.  From that point forward, the former-baby is now self-reliant.  At least in the eyes of the government.

For most people, this works well.  From birth to our 18th birthdays, we learn to manage money.  We learn to cook (or to go through the drive-through ... whichever).  We learn personal care and to bathe and toilet ourselves.  And come our 18th birthday ... we accept the responsibility .... of ourselves.

But for others, to varying degrees, the above milestones prove elusive.  For some people, turning 18 means being saddled with responsibilities which, due to physical illness or mental competency, they cannot meet.  At the other extreme, as some people age or experience onset of illness, their ability to competently meet these responsibilities erodes beyond a minimally necessary level.  Our government's solution to these situations - Adult Guardianship. 

A Guardianship is where a qualified other 'Guardian' assumes the responsibilities to care for, protect, and defend someone, called a 'Ward', who cannot care for them-selves.  Guardianships range widely in scope and duration.  Courts are obligated to narrowly define the guardianship so that the ward retains as much control and self-determination as their level of development will allow.

Stick around for my next post for information on Guardianship of a Minor, and later this year I'll look at some of the questions a court must answer to create an adult guardianship relationship.

Why All Parents Need a Will - not (only) a Trust

If you've spent much time around TrustWorthy Lawyer, you may have noticed that I believe strongly in the value of Revocable Living Trusts.  They are not, however, the best solution for everyone. 

In fact, in the legal world, few answers are universally applicable. 

This, however, is as close as I'll come to giving one that is ...

If you are a parent ... you need a will.  

One right you have in drafting a will is to tell the court who YOU want to have care of your children should you (and if relevant their other parent) die before they've reached adulthood or competency. 

Things you might consider in making this decision include your values, extended family relationships, and your religious beliefs.  Who will ensure that your children maintain their relationship with both (or more) sets of grandparents in your absence?  In contrast, if you are estranged from extended family, who will honor that situation and the reasons behind it?  There are few right answers to who you'd chose and why ... but if it were me?  I'd sure want to make those decisions myself and avoid a future court battle between surviving relatives or friends for the ability to influence the upbringing and formation of my children. 

Adding language to your will to address this important concern is well worth the investment. 

What if I don't have kids?

Estate planning for individuals who either can't or have chosen not to marry or have children poses some unique questions.

In my practice, clients often choose to leave their estate to siblings or nieces and/or nephews or to charity.  There is no wrong answer so long as the client is comfortable with the eventual plan.  The New York Times recent published an article addressing this issue:  Estate Planning for the Never-Married.

While NYT is specifically focusing on individuals who have never-married, the questions are very similar for families comprised of two spouses.  In encourage you to click through and think through the issues raised in this timely article.

As always, feel free to contact my office should you have any questions or would like to discuss further.

Why a corporation might be your most valuable Fashion Accessory

What does it take to start a business - Customers!

That is it.  So long as someone is willing to pay you for a product or service you offer; you have a business.  That lemon-aid stand you started when you were 10 - just as real and legal of a business as my law firm.  Well ... mostly legal, i'm guessing there may have been some health-code violations at play, but that is outside the scope of this blog post!

With starting your own business so easy and cheap, why in the would would you want to pay your friendly neighborhood lawyer to do "Business Formation" work?  

Well, because Business Formation work is a misnomer.  What is truly at play here is ENTITY formation.  And entity formation is IMPORTANT!

As a Business or Asset owner, one of the scariest parts of the law allows creditors (those customers injured or angry) to seek your PERSONAL assets should your business not be able to cover their damages.  This means, not only could you lose your investment or the company bank account .... but also your families home and vehicles.

And the Risk is Real!

If you own a retail establishment, someone could slip and fall and be injured in your store, then suing you for medical bills, pain, suffering, lost wages and more.  Likewise, rental property carries with it the risk of visitors becoming physically injured on site.

Entrepreneurship also carries financial and contractual risks.  You might be sued for money damages in a contract dispute due to a late delivery.  Perhaps you are considering investing in real estate in a promising area that becomes a flop?

Given these facts, why would anyone go forward and take on the risk?

Because the law also provides an option to protect your personal assets.  That option is the Corporation!  Think of the corporation (whether that is C-Corp, S-Corp. or LLC) as an amazing article of protective clothing specially designed to protect you from the risks of business ownership.

The benefit you obtain from incorporating is called "Limited Liability" and we view the corporation as a veil! A Corporate Veil. Picture an individual wearing a veil (perhaps a bride in a trendy birdcage?)  The veil serves to hide its wearer.  Likewise, a disgruntled customer/supplier/third party cannot "see" the owners behind the corporation.

Limited Liability says that the Corporation/Business/Company is a SEPARATE entity from its owners (that's you!).  As a Separate entity, the Business is solely responsible for it's own debts and obligations.  The owners are not.  The veil is in place to shield you.

Conclusion - Explore Entity Formation not because you need help starting a business ... but because you need help mitigating risk! 

Each state has unique laws in place outlining the requirements to set up a corporation as the entity which operates a business and to maintain healthy "separateness" between the owners and that corporation.  (If you fail to maintain separateness, the Veil can be Pierced revealing the owners to personal risk again).  These details are far too nuisanced for an information blog, however are important to explore as you begin this exciting journey as a Business Owner!

What if I change my mind!?

Life happens.

Circumstances change.

Today you may be married with small children.

In the blink of an eye, those children may be married with their own babies and you may be looking at funding long-term care.

The estate plan that is 100% aligned with your life as a young family when you are 35 may well need adjusting by the time you retire in your 60s.

THAT IS A-OK!

Before we begin, a bit of a vocabulary lesson:

Codicil: an addition or supplement that explains, modifies, or revokes a will or part of one.

Revoke: put an end to the validity or operation of a previously executed Will or Trust.  

Should you find yourself needing to change your end-of-life wishes you have 3 basic options.  (But as you'll see, only two are very wise).

Option 1:  Revoke your existing Will or Trust.  Period.

Pro: Likely the cheapest option.  

Con: Leaves you at the whims of intestate succession and offers no medicaid planning. Essentially reverts your planning to before you ever executed a will or Trust.  

Option 2: Execute a Codicil or Amend your Trust

Pro: Still cheaper than Option 3.  Aligns your estate plan with your current wishes. 

Con: Since you now have two valid documents, if not done well, this can lead to confusion.  How exactly do these (the initial Will and the new Codicil) work together?  Exactly which portions of the initial will are now valid and which have been overridden?  Confused?  Exactly! 

Option 3: Revoke previous Will or Trust and redraft

Pro: Eliminates confusion inherent in having two operating documents.

Con: Most expensive due to time necessary for complete redrafting - this is mostly at issue with a Trust.  Redrafting a will isn't as significant of an undertaking.  

Conclusion - Option 1 is almost never going to be a wise decision.  The pro v. con calculus between options 2 and three really depends on the specifics of your case and whether we are dealing with a Trust or a Will.  Contact your friendly-neighborhood-attorney to discuss the specifics of your case!