One of the most daunting tasks that many people find themselves having to consider is becoming a guardian for a family member or loved one. While becoming an individual’s legal guardian requires approval from the appropriate court (usually a statutory probate court), there are some steps that someone looking to apply for a guardianship can take to make the process easier. The Texas Probate Code requires a written letter or certificate from a physician stating the nature and severity, among a list of other items, of the proposed ward’s incapacity. The physician’s certificate must not be dated earlier than 120 days from when the application for the guardianship is filed with the court. In addition, the physician’s certificate must be based on an examination of the proposed ward not earlier than 120 days before the filing of the application for the guardianship. The bottom line is that a doctor must have examined the individual you wish to be guardian of, and also have filled out and signed the certificate, within four months of filing the guardianship application with the court. Additionally, some probate courts have a document that can be found on their website, which if completed complies with the Texas Probate Code requirements for a physician’s certificate. During the difficult time of applying to become someone’s legal guardian, you can make the process easier by timing a physician’s visit appropriately and by utilizing the resources that the courts provide and bringing to the examining physician the approved form for his or her completion. As with most areas of the law, there are many pitfalls and nuances to be aware of, so please contact us with any questions you may have regarding this matter or any other guardianship or probate issues. Matt Migliore, Attorney at Law
PRACTICAL ADVICE – PREPARING YOUR COLLEGE AGE KIDS AND YOU for COLLEGE
Parenthood has been your vocation for 18 years. Now you will send your son or daughter off to college. Besides the emotional break there are some practical steps you can take to protect your child and help him or her cope with being on their own.
Before your child goes to school
- Create an easy way to deposit funds into your student’s bank account that uses online banking. Discuss budgets and restraint.
- Avoid credit cards. Debit cards allow your student to see their spending. There may be a way to deposit money in a “campus cash” account for your child’s necessary incidentals on campus.
- Adhere to the “less is more” theory when packing things for dorm life. Students don’t really need EVERYTHING from their room at home.
- Verify that a Target or Walmart store / location is accessible allowing your student more options for needed supplies.
- Dining and residence halls, sorority and fraternities do an excellent job of providing variety in the residence hall menus at most schools. However, students may simply get tired of the food. Caution your student against the urge to order pizza on a regular basis. Along with “care packages,” send an occasional gift card to favorite restaurants and coffee chains.
- Know the physical address of your student’s residence hall and the number to the in-room landline, if any, if not, to the office/reception in the residence hall..
- Your student needs copies of his or her health insurance and prescription card. Explain how to use them. Most health insurance companies require dependents to be full-time students (minimum 12 credit hours). Your student can take the prescription/insurance information to the health center now so that it is on file if needed.
- Have your child execute a Medical Power of Attorney, HIPAA RELEASE AND AUTHORIZATION and a Directive to Physicians with your family attorney. There is nothing worse than trying to find out why your child is in the infirmary and being told that the medical records are private, protected information.
- Before classes began, go to the registrar’s office on campus to fill out the FERPA release form so you can access him academic grades and records.
- Create a “pharmacy” kit for your child. Include cold and flu medicine, allergy, stomach and pain medications. Also include basic first aid such as antibiotic lotions, alcohol swabs and band-aids. This way when the flu hits or they get a blister walking to class he or she will be prepared.
- Have a conversation with your student regarding integrity, responsibility, behavior and consequences; arm them with the judgment to say “no” to uncomfortable situations and circumstances.
- Explain that a smile is contagious. Everyone is new so the ability to be outgoing and friendly to others will enable your student to find their support groups and interest buddies away from home.
- Drop a note in the mail to your student weekly. There is something special about getting a piece of mail at school. Or enroll in Skype for the face to face conversations on computer video calls. Alot of fun!
- Be sure your student signs up for a text messaging service to inform your student of any emergencies on campus.
I am the mother of three, 2 out and 1 still in college so call me for any type of advice – I have probably had it all happen to one or the other of my children. Especially frightening was the night my daughter went to the hospital and I was 8 hours away unable to get any information. As a result our office has a medical information package that we have designed just for the college age child. We call it the CollegeProtect©. Call our office today for information. Congratulations and Best of Luck!
Posted in Attorneys, Erin Thrash, Estate Planning, Living Wills
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When One Child is the Caregiver
It is a lucky parent who has a child who will take on the formidable task of caregiver. It is a fact of life that our parents cared for us and at some point one of the children in the family will turn around and have to shoulder the responsibility of caring for them. Many adult children caregivers end up taking months or even years off from their lives and careers to provide care for their elderly parents. Frequently, in my practice, the caregiver not only helps with the financial end of the parents care but also will end up with the parent living either in their home or at an assisted living facility nearby. Usually, if there is more than 1 child in the family the other children are grateful for the care that the sister or brother is providing but unwilling to have the parent’s compensate their sister or brother or may be suspicious of the motives. Most children do this out of love and a sense of duty, but even in the closest of parent-child relationships there may be an unspoken expectation that appreciation for the caregiving child’s time and effort may be reflected in the parent’s will or trust. Many times in my practice it comes down to money. If the parent “pays” the child or leaves them something extra in their Will or Trust the other children resent the additional gift. I had a client who was sued by her sister because mom bought caregiving sister a $400 Coach purse. This even though sister had mom living in her home, feeding and providing basic nursing care for her mother for over a year prior to mom’s death!
I counsel my clients that it should be common practice to have a written caregiver agreement, even if that agreement is with your child. After all, professional caregivers demand a contract and a salary, it is not too much to expect that a relative serving as caregiver should be treated similarly. For my wealthiest clients and for those families who are struggling. It seems when money is involved the less likely the siblings of the caregiver are to recognize or acknowledge the caregivers service if it somehow impacts “their” money. The agreement I recommend also helps define expectations of the caregiver and the parents. This helps when the caregiver all of a sudden helps him or herself to a new Mercedes (also a case I have dealt with) and extended vacations when the parent’s were expecting care. A Caregiver Agreement helps to alleviate the conflict and ill feelings that can develop and leave, intact, the family legacy.
Posted in Erin Thrash, Estate Planning, Probate, Trusts, Wills
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Challenges and Changes for Same-Sex couples in Estate Planning
New York has legalized same-sex marriage! Hundreds of couples in NY took advantage of the legalization in the first 24 hours. Not only is NY a pivotal state when it comes to moral shifts in attitudes of Americans but it is also a leader, one of the states that others will follow. Even the US Congress and military in revoking the “don’t ask – don’t tell” policy leftover from the Clinton era has recognized the validity of the unions of same-sex couples. It is one of the many changes going on nation-wide for same-sex couples as more and more states legalize gay marriage. Even those states which recognize “civil unions” are inclined to now consider the “civil unions” marriage.
But there are still a few areas of the law—estate planning being one of them—which present challenges no matter what your state of residence. The biggest problems for same-sex couples may not come until death. Although same-sex spouses are legally entitled to inherit assets from each other whether there’s a will or not in states which have recognized same-sex marriage there is some question as to whether those rights would be legally “recognized” in those states which do not acknowledge gay marriage, and since inheritance is governed through state law, will the state probate courts recognize a valid marriage from NY or another jurisdiction and apply the same laws?
In addition, federal law still does not recognize gay marriages for purposes of federal benefits, ERISA or the tax code. In states which have legalized gay marriage same-sex couples are still restricted by federal law as follows:
- IRAs are not allowed to “rollover” to same sex spouses as they would be for opposite sex partners. “Unlike opposite-sex spouses, same-sex spouses would have to transfer [401(k) and other] accounts to inherited IRAs and start taking distributions each year, rather than allowing the tax-deferred assets to continue to potentially accumulate tax-free earnings.”
- Same-sex partners still won’t get the federal marital deduction—the ability to “leave each other unlimited assets without owing any estate tax”—regardless of their state of residence. These assets may be considered joint by the couple and by the state, but not by the federal government.
This means assets will be taxed once upon the death of the first partner, and may be taxed again upon the death of the second partner.
There also may some challenges when trying to “divorce” a spouse. If a state doesn’t recognize a gay marriage how will that spouse be treated for purposes of “divorce”? If you can’t get divorced but you no longer live together and then one of the spouses die with a Will which leaves “all to the surviving spouse” – is that a surviving spouse? In Texas if a spouse is divorced he or she is written out of any previous estate planning documents but what if Texas doesn’t recognize same-sex marriage and, as a result, not same-sex divorce? It is incumbent upon same-sex partners in Texas to diligently stay current on their planning documents.
But there may be one opportunity not available to traditional married couples which same-sex couples can take advantage of: gay couples are legally entitled to “set up a ‘grantor-retained income trust,’ a type of trust that family members aren’t allowed to create for one another. This trust is a form of trust which allows one spouse to put assets into it and retain an income or annuity stream.
No matter where they live, same-sex couples are simply going to have more challenges creating estate plans on a state and a federal level. The good news is that in spite of these challenges it is possible, with the right help, to plan to protect yourself, your partner, and your family now, and in the future.
Posted in Estate Planning, Living Wills, Trusts, Uncategorized, Wills
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Aging in Place
As estate planners preparation for the unknown (albeit inevitable) is something we know alot about. We assist our clients by organizing their financial and medical affairs for the possibility of incapacity and death and helping them ensure that their families are well taken care of. But as we go through our estate planning process, many of our clients find that at some point in their lives or that of their parents it becomes necessary to consider the option of assisted living. Sometimes parents look forward to the move because the meals are prepared and there is the stimulation of the social interaction among the residents. Many times, however, clients and or their parents want to stay in the house they have lived in for decades. But houses built 20+ years ago were not built to accomodate the needs of our aging population. The doorways are too narrow to allow for wheelchairs, the bathrooms cannot accomodate special needs and stairs can isolate and eliminate use of bedrooms and other areas of a home. We have recently found a service in Austin which not only will help our clients and their parents pack, store, organize, sell or give away possessions in an effort to downsize in preparation for the move to independent or assisted living but will accomodate the alternative of staying in their house. Linda Carter, owner of Life’s Next Step, began this service when she had to help her parents through this stage of life and there was no-one for her to turn to. Now she uses her experience to make the process easier for her clients. She has the construction background as well and she uses that experience to assist clients in remodelling and refitting their home to accomodate their changing needs. This alternative can frequently be a more cost effective appraoch to care as the cost of remodelling the home is exempt from potential Medicaid qualification and if a parent can stay in their home for several more years it is usually less costly than a $5-6,000 / month independent or assisted living expense. We all want our parentls and clients to be as independent as possible – and they frequently want to stay where they are most comfortable, Linda’s company helps them to do that. Aging in Place – gracefully.
Posted in Erin Thrash, Special Needs Planning
Tagged estate planning, medicaid, special needs, texas
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Special Needs Planning
Chances are there is or will be someone in your family who will need long-term help managing personal care and/or finances. The following statistics confirms that the need for special needs care and planning is increasing:
- In 1992, there were 15,580 children ages 6-22 who were diagnosed as having what is now called an Autism spectrum disorder. By the middle of the 2000’s the number was 224,594.
- There are an estimated 24.9 million adults in the United States with Serious Psychological Distress.
- An estimated 4.4 % of U.S. adults may have some form of bipolar disorder at some point in their lifetimes.
- An estimated 22.6 million people in the U.S. (9.2% of the population age 12 or older) are substance dependent or abusive.
Because many of the conditions causing a need for special care do not decrease life expectancy, families are seeking answers on how to provide the best quality of life for their loved ones for the rest of their lives . . . which, for a young child, could be 70 years or longer.
At the same time that the need for support services is increasing, government and non-government programs are being reduced due to the economy, pressure on state and local budgets and the deficit spending at the federal level. Many families with special loved ones acknowledge that these programs may not be there to provide the needed benefits in the future. They are looking at alternatives to provide those services.
Their concerns are:
- Who will care for my loved one when I am gone?
- Who will be my loved one’s advocate?
- Where will my loved one live?
- How much independence can my loved one maintain?
- How long will the money I provide last for my loved one’s lifetime?
- How can I fund these needs?
Are government benefits for a special needs person worth preserving? For families of modest or limited means, the answer is almost always, “Yes.” However, for more affluent families, the answer may be, “Maybe not.” IN addition for the more affluent there is increasing pressure to “means” test the family or special needs individual.
In the past, many planners focused exclusively on preserving public benefits at all costs. Today, special needs planning is not necessarily “poverty planning.” The proper focus today is how to provide the best quality of life throughout the special needs person’s lifetime. It may be better to privatize some special needs care instead of spending thousands to protect a public or governmental benefit that has a low probability of being available in the future.
Careful planning is necessary to deisgn a plan that will supplement government benefits that are worth preserving, is flexible enough to adjust to changes in future benefits, will preserve and expand assets, will make sure this person receives proper care, and may even save taxes.
For a special needs trust, the proper funding, implementation and periodic review are especially critical because it may have to last a lifetime and often cannot be replaced. Once the plan is in place, it will be need to be managed. Who should do that? The ideal trustee would:
- use discretion, acting in the best interest of the disabled beneficiary;
- understand public benefits and keep up with changes in the law;
- wisely invest and conform to all statutory fiduciary requirements;
- understand taxes;
- keep perfect books;
- provide advocacy and prevent abuse; and
- be immortal.
Since no one person can meet all of these requirements, often the most effective solution is to divide the responsibilities into areas and have a team of professionals work together. For example:
- A Corporate Fiduciary Trustee (bank or trust company) keeps perfect books; carries insurance, is bondable or has deep pockets; is immortal.
- A Care Manager who uses discretion and acts in the best interest of the beneficiary; understands public benefits; provides advocacy and prevents abuse.
- A Financial Advisor who invests wisely; conforms to all statutory fiduciary requirements; understands taxes.
- A lawyer skilled in special needs matters keeps up with the ever-changing laws and regulations and provides wise counsel to the family and the other team members.
Often a professional trustee will manage the funds, make distributions, prepare tax returns and keep the records, but will be directed by an “Advisory Committee” that makes distributions, can amend the trust or replace the trustee. A care manager can also serve on this committee or be appointed by the committee. The Thrash Law Firm has the privilege of serving on several such Advisory Committees.
Posted in Erin Thrash, Estate Planning, Special Needs Planning, Trusts, Wills
Tagged estate planning, federal benefits, special needs, texas
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Estate Tax Changes – a rollercoaster!
Posted in Attorneys, Erin Thrash, Estate Planning
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Board Certified attorney Erin Thrash answers Estate Planning and Probate Law questions for the Austin American-Statesman “Know Your Rights” blog
My Parent’s Debt? Posted 8/31/2010 1:30 AM CDT on Statesman Staging
Today we welcome Board Certified attorney Erin Thrash to help us answer your Estate Planning and Probate Law questions.
Q: My parents are both in their seventies, and are not in the best financial position. They have a significant amount of debt. I don’t know exact amounts, but I wouldn’t be surprised if they owe more money than they have in assets. Because of their frail health, I’m curious what could happen if they die and the liabilities (credit cards, mortgage, home equity line of credit) are greater than their assets (home, 401(k)s, life insurance). Do my sister and I get stuck with their remaining debt?
A: Generally under Texas law the heirs of the estate do not have to pay the debts of the deceased from their own assets. The estate is liable for the debts of the deceased but the heirs are not, at least not until he or she takes a share of the estate.
Before an heir can take ownership of an estate share there is an “administration” during which the personal representative of the estate (an “Independent Executor” in most cases in Texas) notifies creditors, gathers the assets and determines what are valid debts of the estate. It is the personal representative’s duty to try to maximize the return from the assets. During this administrative period the heirs can decide if they want to take the assets of the estate, subject to all of the liabilities, or decide if they want to “disclaim” their interest (and the debts).
If there is a Will and one of you (or both) is named the Independent Executor you can also serve in that representative capacity without incurring any liability. Having a Will naming an Independent Executor will minimize the costs of the administration. The Independent Executor could then try to minimize the debts and maximize the return from the assets. The result might be to have something left for you and your sister.
To help you understand the best options for your family I suggest you consult with an Estate Planning and Probate Law Board Certified attorney. If you do not already have one, you can find one in your area at www.tbls.org.
Erin Thrash, Board Certified in Estate Planning and Probate Law since 2006.
If you have a legal question you would like answered, send it to askabcattorney@gmail.com.
Disclaimer: This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.
Posted in Erin Thrash, Estate Planning, Probate
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Same Sex or Second Parent Adoption
The question has recently come up in our practice as to whether same sex parents can adopt in Texas, and also whether same sex adoptions from another jurisdiction will be recognized in Texas Courts. The Texas Family Code does not reference same sex adoptions. However, it would at least initially appear that under the code where it references those persons who have standing to bring adoption suits, that it may or may not be possible depending on the situation. Under those standing provisions, if one parent is the biological parent, then it is does not appear possible for the non biological same sex parent (often referred to as the “psychological parent”) to even have standing to bring a second parent same sex adoption (a stepparent however could). However, if neither parent is the biological parent, then it seems at least plausible that a same sex parent adoption could occur.
When a Codebook is silent as to a matter, generally looking to case law is the next step. Case law seems to indicate a more favorable position for same sex adoption. While there have only been a couple of cases on this matter, the holdings of the Courts have been in favor of second parent adoption. In re Hobbs, No. 01-04-01069 Houston (1st Dist), 2004 was the first leading Texas case on the matter. In this case and at least one other case, the facts are that a single lesbian woman adopted a child internationally, and after returning with the child, the adoptive mother and her partner filed a petition seeking parental status for a second parent partner. The Court granted the adoption. Several years later, the original adoptive mother tried to declare the adoption void after she and her partner had separated. The Court did not void the adoption and granted rights in the child to the second parent adopter as well.
It would also seem that Texas would recognize a same sex adoption granted by another state’s Court. There is a general full faith and credit rule in the law that states that a valid Court Order rendered by a court of competent jurisdiction shall be recognized by another court of a different jurisdiction, and that the Order will be given the full faith and credit as if the second jurisdiction had originally rendered the Order. One possible attack to this argument is that Texas does not have to recognize a foreign jurisdiction’s order if it is against the public policy of the state of Texas. Under both the Texas Family Code and the Texas Constitution it explicitly states that same sex marriage is against the public policy of the state of Texas. However, based on the trend of the Texas Courts, it does not appear that they are stretching this argument when handling same sex adoption cases. However, until there is further case law in the area or some kind of promulgated code provision that addresses same sex adoption, the Courts will decide the issue based on the facts of each individual case.
Posted in Adoption
Tagged estate planning, gays, lesbians, life partners, partners, powers of attorney, revocable living trusts, same sex marriages, texas, wills
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