Execute Documents Remotely

We will soon be able to assist clients in executing their estate planning documents without meeting in person through use of remote notary, which will soon be available by the Indiana Secretary of State. Our attorneys and paralegals will take steps to have this service available to our clients as soon as it is available from the Indiana Secretary of State. Remote notary will allow us to serve as remote notary witnesses, and notarize documents virtually, without an in-person meeting. Although a Last Will and Testament must be executed with in-person witnesses, the remote notary will allow for other documents to be notary witnessed.

Please contact my office with any questions. We’re excited to be able to offer this service to clients at this time of public health crisis and social distancing.

A Celebrity’s Daughter’s Death and Estate Planning for Young Adults

A few weeks ago, I wrote about the importance of having your now adult child get his or her estate planning documents prepared.  The idea may seem unnecessary at first blush — your now 18 year old (or twenty-something) “adult” child has just reached the legal age of adulthood and likely has yet to accumulate significant assets.  He or she may in many ways seem still like a child to you, and not yet ready for important adult documents.  However, under the law, they are adults, and you are no longer their default decisionmaker nor are you automatically granted access to your adult child’s medical records.  This is an important time for your child to designate whom he or she wishes to make these types of decisions.

A celebrity death serves as reminder to us of all the necessity of getting these documents in place.  Bobbi Kristina Brown, the twenty-two year old daughter of Whitney Houston and Bobby Brown, died recently after several months in a comatose state.  You can read more about the tragic story here and here.  Unfortunately, her lack of incapacity planning documentation and resulting legal protections (not unusual, given her age) resulted in a family legal fight during her incapacity.  A reminder to talk with your young adult children about the necessity of getting, at a minimum, their incapacity documents in place under the counsel of an estate planning attorney.

My Child is 18 Years Old! Estate Planning for Young Adults

Having a child attain the age of 18 brings with it the legal age of majority and autonomy in her decisionmaking.  One aspect of this age of “adulthood” that may not be readily apparent to both the now-adult child and her parents is the immediate loss of the parents’ ability to serve as a decisionmaker.  Simply stated, as the “child” is now an adult, the young adults’ parents no longer have access to and ability to serve as a financial or medical decisionmaker for their child.  As this article explains, this can have serious implications in the case of an adult child who becomes incapacitated for any reason — illness or accident — even of a temporary nature.  Well planned parents and their adult children should consider getting, at a minimum, incapacity planning documents in place, which includes an Appointment of Health Care Representative and Power of Attorney document.

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.

Four Essential Documents

Estate planning can sometimes appear complicated, full of acronyms and sophisticated sounding concepts. While it is true that estate planning can be complicated, in its simplest form, an Indiana estate plan should consist of at least the following four documents:

  1. Last Will and Testament. In its most basic form, your Will provides for you to direct the distribution of your assets titled to your name individually upon your death and appoint a person (or persons) to administer your estate upon your death. If you die without a Will, assets titled in your individual name may be subject to intestate administration.
  1. Appointment of Health Care Representative. Also called Health Care Proxy and Health Care Power of Attorney, this document provides for the appointment of a person (or persons) to make medical decisions for you in the event that you are incapacitated and unable to make decisions for yourself.
  1. General Durable Power of Attorney. In your General Durable Power of Attorney, you name a person (or persons) to make financial decisions for you in the event of your incapacity.
  1. Living Will. Your Living Will allows you to state your preferences regarding end of life decisions in the event of an incurable illness or persistent vegetative state.