Estate Planning Considerations for Mothers

How should a mother provide for her children in her will?  A recent article asks this question, pointing out that many women live alone and need to make decisions on their own, and not with a spouse or partner, regarding their estate planning, finances, and inheritance for their children.

“There are 26.7 million women who are aged 65 or older, according to the 2016 profile of older Americans by the U.S. Department of Health and Human Services. Nearly half (46%) of women who are aged 75 or older live alone. These women have homes, financial resources and children, requiring them to make these decisions on their own.”

The author points out that a mother’s desire to treat her children “equally” in her estate planning, may not match the realities faced by her children.  “For many, dividing the inheritance equally among their offspring is a deeply held value. But it isn’t always easy: What if one child is a successful professional with a good pension plan, and the other is a struggling artist who may never have adequate health coverage? Or perhaps one daughter has a special-needs child, and the other has chosen not to have children? What then is the process of balancing their value of equal distribution and the contradictory need to make financially realistically decisions?”

 

Estate Planning Beyond Documents

See the New York Times today for an article titled There’s More to Estate Planning Than the Will.  It is an excellent article and well worth the read.  I agree with the conclusion that documents are not enough.  While it is truly a gift to your family and loved ones to have all of your documents in place and up to date, the gift of well organized affairs — paperwork, passwords, records all in one place and organized — cannot be overstated.   I have seen firsthand the relief and deep appreciation of surviving family members when their deceased loved one has left everything “all in order.”  It is a true gift.

The article describes the book by author Erik A. Dewey.  His Big Book of Everything can be downloaded for free here.  What a nice gift!  His form, or a similar one, could be a good place to start — in addition to estate planning documents — to “get your affairs in order.”

 

 

Adult Guardianships in Indiana

Good planning for the possibility of future incapacitates, can decrease the likelihood of ever needing a guardianship.  However, if documents are not in place, or even if they are, a guardianship can be needed in certain situations.

What is an adult guardianship?

An adult guardianship is a court proceeding by which a court adjudicates whether a person has the capacity to make financial and medical decisions for herself.  It is a serious proceeding.  A determination of incapacity means the loss of many legal rights, including the ability to enter into contracts.  If the court determines that an individual is incapacitated, the court appoints a guardian to make decisions for the incapacitated person.  The guardian role is similar to that of an attorney-in-fact and health care representative, documents that can be prepared when an individual has capacity, for future incapacity planning.

When is a guardianship needed?

A guardianship may be needed when an individual is no longer able to make financial and health decisions for himself.  This may be due to illness, injury, or other cause.  Guardianship is also available for children due to their age of minority.  Even if Power of Attorney and Appointment of Health Care Representative in place, a guardianship can be necessary, particularly in cases of financial elder abuse or people seeking to take advantage of the incapacitated person.

Who can be appointed as guardian of an adult?

Under Indiana law, the court will first look to the individual named as in a Power of Attorney document as the Attorney-in-Fact to serve as guardian.  If there is no qualified Attorney-in-Fact, the court would next give priority to a spouse followed by an adult child, if that person is suitable and willing to serve.  An independent person or an corporate fiduciary could also serve in this role.

What is guardianship of the person?

A guardian of a person is responsible for the food, health, and shelter needs of an incapacitated person.  The guardian is responsible for the physical and emotional well being of the incapacitated person.  The guardian makes healthcare decisions for the incapacitated person and is responsible for making sure the living arrangements for the incapacitated person are appropriate for their needs.

What is a guardianship of the estate?

A guardian of the estate is responsible for the financial affairs of the incapacitated person.  The guardian will pay the incapacitated person’s bills and manage their finances.  The guardian has a duty to prepare and file an inventory with the court and file regular accounting.

Does a guardianship process require the assistance of an attorney?

In addition to the obtaining the assistance of an attorney in the guardianship filing and procedure with the court, once appointed, a guardian will benefit from the assistance and advise of legal counsel in carrying out their responsibilities and duties.  An attorney will prepare the guardianship petition, represent the potential guardian before the court, and will assist with the preparation of the inventory and accounting to be filed with the court.  The guardian serves in a fiduciary role, and an attorney can advise the guardian as to his responsibilities and duties in that role.

An alleged incapacitated person also has a right to be represented by counsel in the guardianship proceedings, and may wish for counsel to protect his rights.