If you were to become incapable of handling your own affairs due to mental or physical incapacity, interested parties could petition the court to appoint a guardian to act in your behalf.  You may have no say about who this guardian is going to be, and if the petition is granted you could become a ward of the state.

This is a prospect that is not appealing to many people, but the good news is that you can avoid guardianship proceedings if you engage in intelligent incapacity planning.

There are a lot of good reasons to create a revocable living trust, and the fact that these trusts enable probate avoidance would be at the top of the list.  Probate can be a long drawn out process that stands in the way of your heirs receiving their inheritances in a reasonably quick and efficient manner.  Probate is also expensive and it is not uncommon for costs incurred during the probate process to consume between 5% and 10% of the overall value of your estate.

But in addition to providing for asset transfers outside of probate, you can include provisions in a revocable living trust agreement that could circumvent the need for guardianship proceedings should you become incapacitated.  A lot of people who create a revocable living trust will serve as the trustee while they are still alive and well.  But you could include the appointment of a disability trustee who would take over and handle the administration of the trust in the event of your incapacity.

This is just one way to prepare yourself for the possibility of incapacitation. To explore the matter in greater detail simply take a moment to arrange for a consultation with a licensed and experienced Indianapolis estate planning attorney.

Frank & Kraft, Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

Estate planning is going to involve inventorying your assets in anticipation of future distribution of the same to your loved ones.  You must then decide on how you are going to get these assets from point A to point B.  When you’re doing this you have to identify those who will be receiving inheritances and ideally choose the vehicles of asset transfer that are appropriate given the age and proclivities of these recipients.

Along these lines many people have to stop and take pause as they are considering how they will provide for minor children when they are planning for the future.  There are two different levels to this.  Parents of minor children are going to have to go forward in a precautionary manner under the assumption that it is possible that they will pass away prior to the children reaching adulthood.

This would entail naming a guardian who would care for the children in the event of the death of the parents.  Life insurance would also be a key component, and the proceeds could be directed into a trust for the benefit of the children.  One could also name a property guardian in his or her will, or select a custodian to handle the funds in behalf of the minor children under the Uniform Transfers to Minors Act.

In other cases older people such as grandparents or great-grandparents may want to provide for children with the knowledge that they will probably still be minors when these inheritances become available.  These individuals often create trusts that include stipulations with regard to how money can be spent for the child’s well-being while he or she is still a minor.  The trust agreement can go on to provide a framework for asset distribution after the child becomes an adult, and this can sometimes include incentives toward positive behavior such as educational achievement.

Frank & Kraft, Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

It is important to know under which conditions guardianship and/or conservatorship responsibilities will apply and what the procedure is in order for the rulings to be made. Guardianship can apply to anyone who is considered by the courts to be disabled in a way that makes them unable to take responsible actions or to those who are minors and therefore need the assistance guardianship and conservatorship will offer.

Some states combine the duties within the designation of guardian, but traditionally a conservator handles financial decisions in behalf of the ward and the guardian takes care or personal decisions.

A guardianship ruling can apply to a person who is mentally incompetent for one reason or another, or suicidal or psychotic in a way that makes it clear that he or she is unable to make decisions relating to legal, medical or financial matters.

In all cases where guardianship is being considered for an adult individual, there will need to be a report submitted to the deciding court from medical professionals who are fully accredited.

The request for guardianship will normally be granted should these reports indicate that the individual is suffering from incapacity due to severe mental illness or age related diseases such as Alzheimer’s disease.

It should be understood that guardianship does not always have to be total.  Partial guardianship can apply to an individual who has a conservator appointed for their financial affairs while the individual retains control of his or her personal affairs.

In the case of both conservatorship and guardianship, those responsible have duties defined by each state.  It is very important that as a guardian or conservator you clearly understand what your legal duties are regarding reporting to the courts and the frequency at which these reports will be required.  Make sure you have a good estate planning lawyer to counsel you in advance of taking up your duties!

Frank & Kraft, Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

Guardianship is a legal proceeding by which a person petitions the Court to allow the petitioner to assume control over the physical person or property of another person. Guardianship can occur in several circumstances:

• Injury or illness of an adult that leaves the adult unable to care for themselves or their property
• Minor Children who do not have a parent to care for them
• Mentally disabled persons who are at risk of being taken advantage by designing persons
• Older adults suffering from dementia or Alzheimer’s

The need for guardianship over a younger adult will usually occur if that person has suffered illness or injury, which reduces their ability to care for their physical needs or handle their property. Guardianship is usually awarded by the court to a family member concerned about the individual subject to guardianship.

If you have young children you should consider who you would want to have guardianship over your child is something should happen to you that would prevent you from raising your child. Consider also that the person you would want to have guardianship over the person of your child, the one responsible for the child’s upbringing, may not be the same person who would have guardianship over any property or money you would leave for a child. Parents of a mentally or physically disabled child also need to consider guardianship issues in their estate planning.

Most people are familiar with the situation where an elderly parent or other family member may need guardianship because of Alzheimer’s or some other form of dementia or physical incapacity. Guardianship may be avoidable in this circumstance if a durable power of attorney is executed when the person is competent.

There are also instances in which the state has to take guardianship over a person and their property, through such agencies as the Office of the Public Guardian, or the state’s Office on Aging. Public guardianships can occur if the subject of the guardianship has no relatives to care for them or if such relatives have been removed from guardianship by abusing their position as guardian.

Frank & Kraft, Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

If you are concerned about a family member being able to care for themselves, you might want to consider guardianship. A guardian can be appointed for persons who cannot provide self care or manage their finances, who have dementia, or are otherwise incapacitated mentally or physically. Those who are habitually drunk or abuse drugs or have a developmental disability can also be considered incapacitated for guardianship purposes.

There are three kinds of guardianships:

• Guardian of the person—oversees living conditions, education, and medical services and treatment of the protected person (person with a guardian). A guardian of the person must be a natural person, not a corporation.
• Guardian of the estate—oversees the financial and investment affairs.
• Guardian of the person and the estate—oversees both the person and the estate (in many cases, one person serves as both kinds of guardians).

A guardianship can either be voluntary or involuntary, temporary or permanent. A voluntary guardianship is at the request of the ward or protected person, whereas an involuntary guardianship is at the request of family or friends of the protected person. A temporary or emergency guardianship can be court ordered, without a hearing, but can last no more than 60 days. A permanent guardianship lasts as long as necessary, but there must be a hearing first. Guardianships can also be limited, with guardians only having limited power. If not limited, the protected person has no legal capacity and must act legally through the guardian.

Among the issues to be decided at the guardianship hearing are—

• Can the person truly not care for themselves or manage their finances?
• Who would be the best guardian for the job?
• Who are the people who should spend time with the protected person?
• What decisions can the protected person make on their own?

Frank & Kraft, Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

A mental disability or terminal illness can leave you unable to handle your finances and make your own medical care decisions. That is why it is important to create a disability plan. Without a disability plan, the legal system will decide who has control over your medical wellness and financial assets.

Make a Medical Plan

A mental or severe physical disability may leave you without the ability to tell your family members and doctors how you want to be cared for. If you would like to name a family member or friend to make medical decisions on your behalf, you can use an Advanced Medical Directive, also known as a Medical Power of Attorney. An Advanced Medical Directive goes into effect when your doctor deems you unable to make your own decisions.

You may also create a Living Will, a document that states what type of care you do or don’t want in the event of terminal illness or a vegetative mental state. A Living Will is often used to state how long a person is willing to be left on life support systems and whether you want to be resuscitated if your life signs fail. Your Living Will cannot, however, make real time decisions for you, making the Medical Power of Attorney equally important.

Make a Financial Plan

Who will control your finances and property if you should become incapacitated? You can determine this in a variety of ways. First you can create a Financial Power of Attorney. If your Financial POA is a “durable” one, then you can use it any time during sickness or health. If, however, your POA is only “springing” it will not go into effect until a doctor states you are mentally or physically unable to make decisions.

A Revocable Living Trust is a common disability and estate planning tool. The benefit of a Living Trust is that it has powers before and after your death. As long as you are in good health you will control your Trust and all of your financial assets, but if you should become disabled or die, a trustee will take over. In the event of your death, a Trust allows property to pass easily to your heirs.

Frank & Kraft, Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

If you suffer an illness or injury that leaves you unable to care for yourself, you’ll need someone to handle your affairs on your behalf. This is when a guardian and/or a conservator would be appointed for you. What’s the difference between the two?

A guardian is a person who’s appointed by the court to take care of your personal interests and day-to-day care. Some of the things a guardian might decide for you are where you’ll live and what kind of medical care you’ll receive. A guardian is also responsible for making sure that your needs for food, hygiene, and other daily requirements are met, either by providing these things or by hiring someone else to do it.

A conservator, on the other hand, is a person appointed by the court to manage your finances and property if you can’t do so yourself. Examples of things a conservator would handle include your bank accounts and investments as well as making decisions about selling your property in order to fund your care.

The same person may be appointed to serve as both your guardian and your conservator, or there might be two different people appointed to fill these roles. Also, a corporation or a state agency may be appointed as either guardian or conservator as well.

The main disadvantage to the court appointment of people to make decisions concerning your care and your finances is that, once you’re incapacitated, you have no say as to who performs these functions. One way to avoid the need for a guardian or conservator is through estate planning. There are several ways to plan ahead and give people you trust the authority to handle your affairs if you’re incapacitated. Documents such as a Living Trust and Advanced Healthcare Directives are essential tools when planning for incapacity. An estate planning attorney can offer guidance as to which of these estate planning tools might work best in your personal situation.

Frank & Kraft, Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

If family members feel that you are no longer able to care for yourself, they may petition the court to appoint a guardian – typically called a conservator – to look out for your best interests. If the court grants this petition, the conservator would then be responsible for making personal and financial decisions on your behalf.

You can however, object to the appointment and there are some rights you retain even after a conservator has been appointed:

• being present during the hearing if desired
• appointing an attorney of choice even if he or she cannot afford the attorney’s fees
• request the Court to appoint an attorney even if the senior person cannot pay the fee
• prevent personal physician and other people from testifying against the senior person
• have an independent evaluation of his physical and mental condition

What if a Conservator is not doing his job properly?

If you feel that the Conservator is not representing your best interests, you can ask the Judge to change your Conservator – an attorney can help you with this process.

How is a conservatorship terminated?

If you can prove that you no longer need a conservator, you can petition the court to limit the scope of the conservatorship or even terminate it completely. Again, a qualified elder law attorney would be able to advice you during this process.

Frank & Kraft, Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.

If you’re a parent, you want to make sure you’ve provided for your children in the event you die while your kids are still minors. Part of doing this is to make a will appointing a guardian for your children. Sometimes, though, there are special complications that can make choosing a guardian especially difficult.

If you have children from multiple marriages for example, you may be wondering how to choose a single guardian for all your kids.

In some cases, this is not a difficult decision. You may have a brother, sister or other relative that can take all your children and they can continue their relationships with their separate families as well.

If you don’t have access to this kind of accommodation, you may have to consider splitting the children up by designating their respective relatives as guardians.

The truth is, there’s no requirement that you name one guardian for all your children, although most people do so in an effort to avoid separating their children. You, as a parent, know what’s best for your children, and it’s most important that you choose the guardianship arrangement that will best meet each child’s needs. Also keep in mind that, generally, if one parent dies, the child goes to his or her surviving parent and not to your designated guardian.

To make sure you’ve chosen the best possible solution, consult with an estate planning attorney.

Frank & Kraft, Attorneys at Law is a member of the American Academy of Estate Planning Attorneys.