Guardianships/Conservatorships

If your loved one is having trouble managing her affairs because of a mental or physical disability, consider consulting an elder law attorney about establishing a guardianship, conservatorship, or both. An example of a prime candidate for a guardianship or conservatorship would be an elderly man or woman diagnosed with dementia who needs help managing health care, paying bills, or is being unduly influenced by others. However, there are many other scenarios that call for the help of a guardian or conservator. Contact the office of a local elder law attorney for more information.

Even though the legal definitions vary from state to state, there is a general distinction between the terms, “guardian” and “conservator.” A guardian has a broad scope of responsibility for the interests of the ward, which is the title given to an individual with a guardian. These responsibilities include health care management and involvement in the protected person’s daily affairs. Conservators are appointed mainly for money management, which means they have a less active role in the day-to-day activities of the protected person (an individual with a conservator). In many instances, guardian/conservator is a joint role held by one person or entity, such as a spouse, adult child, or even a non-profit or fiduciary corporation. However, different people may be appointed to these respective roles. In other cases, there may be a conservator but no guardian.

Guardians and conservators must be appointed by the court. The process begins with any person interested in the well-being of the potential ward or protected person hiring an elder law attorney to draft a petition to the court for guardianship or conservatorship. This petition lists the reasons why a guardian or conservator is needed and nominates one or more candidates to fill the role. A Physician Statement from a doctor indicating the potential ward or protected person is unable to manage their medical decisions or finances should be submitted, as well. After the petition and Physician Statement are filed, the court and the attorney’s office schedule a hearing. The potential ward or protected person is entitled to attend, either alone or with her own legal representation. The judge considers many factors when deciding whether somebody needs a guardian or conservator. To name a few, he or she reads the initial petition and Physician Statement, any additional information submitted by a court visitor (who meets with a potential ward and writes a report for the judge), and the testimony that a potential ward or protected person, petitioner, and witnesses provide on the day of the hearing. The judge will then issue a decision and appoint a guardian or conservator if the evidence supports that decision.

Here is something to consider before petitioning for guardianship or conservatorship. Are there already other legal documents in place, such as a Durable Power of Attorney or a Revocable Trust? These types of documents appoint individuals to fill similar roles to guardians and conservators. If there are documents in place, to what extent do they protect the individual? Are the people appointed in the documents working for the best interests of the ward or protected person?

To learn more about whether a guardianship or conservatorship is appropriate, or to find out how a guardianship or conservatorship relate to previously established legal documents, contact the office of an attorney in your state who specializes in elder law. This attorney will be knowledgeable of your state’s specific laws and provide you with the information you need to arrive at a proper decision, one that should not be made without the advice of legal counsel.

Caring for Our Loved Ones – and Taking Care of Ourselves

Because we are living longer than ever before, we are also seeing a swell in the number of people who are caregivers for their aging loved ones. There are around 15 million individuals in the United States who spend time providing unpaid care to someone with mild cognitive impairment, Alzheimer’s, or another type of condition that affects memory. What’s more, there are 3 million people over the age of 75 who are caregivers for other seniors, helping them with daily tasks such as eating, bathing, and going to the bathroom. On average, these caretakers over age 75 spend 34 hours per week in their role, according to a study conducted by the National Alliance for Caregiving and the AARP Public Policy Institute.

As these statistics suggest, people in the United States invest amazing amounts of time, energy, money, and lost wages in caring for aging loved ones. The work is often more taxing than first anticipated. If you are caring for an aging adult, you must monitor your stress level. Stress affects not only the quality of care you provide, but your well-being, too. Caregivers commonly experience bouts with exhaustion, depression, weight loss or weight gain, and troubles with sleep because they put the needs of their loved one first without attending to their own. Being a caregiver can take such a toll that when one spouse serves as caregiver to the other, the spouse receiving care outlives the caregiving spouse 67% of the time.

Thankfully, there are ways to alleviate some major challenges of providing care. First, be sure to plan. Meet with an Elder Law attorney about Long-term Care Planning. It is best to do so before you or a loved one need care, but no matter what stage you are in, the attorney stands ready to work with you in developing a plan for care and to help you navigate the coinciding financial and personal costs. Speaking with an Elder Law attorney and following through with a Long-term Care Plan will help overcome a second obstacle: managing stress as a caregiver. Remember, it is important for caregivers to care for themselves, too. Do something you enjoy every day, do not skip your doctor appointments, and be okay with asking for and accepting help.

FREE Advance Planning Seminar

Date:  October 27, 2015
Time:  10:00 AM or 6:00 PM
Location:  Eden Prairie Chapel, 7625 Mitchell Road, Eden Prairie, MN 55344

Statistics show that almost 70% of us are unprepared in one or more vitally important areas of planning.  Join us for this free workshop and get answers to your questions on how planning now can help protect your family and loved ones in the future.  On Tuesday, October 27, Eden Prairie Chapel is hosting free Advance Planning Seminars offering speakers from Maser, Amundson, Boggio  & Hendricks, P.A. on Legal Tools and from Washburn McReavy on Advance Funeral Planning.  The presentations will begin at 10:00 am and 6:00 pm at the Eden Prairie Chapel, 7625 Mitchell Road, Eden Prairie, MN 55344.  Refreshments will be provided.  Please RSVP at 952-975-0400.

FREE Advance Planning Seminar

Supplemental and Special Needs Trusts for Disabled Individuals

Our firm specializes in Supplemental and Special Needs Trusts for disabled individuals. Shareholder Randy Boggio has been a pioneer in Minnesota in this area of law.

When people hear about the practice of “elder law” they imagine we work only with geriatric individuals. Elder law is so much more than just helping people over age 65 or those that are looking at nursing home care. We also work with minor disabled children and help families plan for care once they reach the age of majority.

An inheritance received by an individual who is receiving public benefits (Medical Assistance, for instance) may cause the recipient to lose benefits, force him or her to spend down the inheritance, and reapply to qualify for benefits. In order to preserve assets and ensure the recipient can continue benefits, we work with families to draft the appropriate estate planning documents.

Free Pre-Paid Funeral and Legal Documents Seminar

Date:  August 26, 2015
Time:  2:00 PM – 4:00 PM
Location:  Martin Luther Care Center, 1401 East 100th Street, Bloomington, MN 55425

Plan to attend this presentation on estate and pre-paid funeral planning.  Wednesday, August 26, Martin Luther Campus is hosting “Senior Moments, Remembering not to Forget” offering speakers from Maser, Amundson, Boggio  & Hendricks, P.A. on Estate Planning and from Washburn McReavy on Pre-Paid Funeral Planning.  The presentation will take place from 2:00 pm to 4:00 pm in the great room at the Martin Luther Care Center, Bloomington location.  Please RSVP to Janelle at 952-948-5167.

Pre-Paid Funeral and Legal Documents Seminar

What Is A Letter Of Intent?

A Letter of Intent is a document that goes hand-in-hand with a Special Needs Trust or a Supplemental Needs Trust. Also known by the names “Plan of Care,” “Memorandum of Care,” and “Memorandum of Intent,” the purpose for writing a Letter of Intent is to provide instructions and information to new caretakers when a person with special needs is transitioning out of the direct care of a parent or legal guardian. Since the parent or guardian is the ideal source of details about a beneficiary’s specific needs, preferences, and personality traits, writing a Letter of Intent is key for preserving the beneficiary’s quality of life.

As you can imagine, Letters of Intent often take some time to write because there is much information to record. Not only should the names and addresses of doctors, financial advisors, and close family members be provided, it is also crucial to include the Beneficiary’s favorite foods, entertainment preferences, daily habits, future goals, and friends. Making this information available will help enhance the Beneficiary’s ability to adjust to the change of scenery and caretaker. It will also assist the new caretaker with supplanting a personal connection with the Beneficiary. Since Letters of Intent are not legal documents and do not need to be notarized, keep in mind that they are malleable. A Letter of Intent should be edited and re-printed as the Beneficiary’s needs and preferences evolve. Remember, if you are the guardian, review the Letter of Intent with the Beneficiary and other members of his or her network of support on a regular basis and make sure that the most current edition travels with the legal documents.

For more information about Letters of Intent and transitions of care for your child with special needs, consult an attorney or visit www.pacer.org and www.thearc.org.

Why Parents And Guardians Of Children With Special Needs Should Have A Will In Place

Parents and guardians of children with special needs can do everything perfectly from qualifying their child for government assistance, to establishing a trust, to ensuring that their daily needs are fully met. However, not having a legal Will in place may jeopardize much of the effort that you and your family invest into the care for your child.

When somebody without a Will passes away, the government determines how the estate is distributed. If the decedent is not survived by a spouse but is survived by children, the assets will pass to the children. If one or more of these children has special needs and has been receiving government benefits, assets from the estate provided directly in the child’s name may disqualify them from receiving the public assistance funding.

This is why having a legal Will in place is crucial. The Will can be used to designate any distribution from the estate for the benefit of a special needs child to be put in a Supplemental Needs Trust. Not only will executing a Will go a long way in preventing government involvement with estate distribution, it can assure that assets will be provided to your child with special needs in a way that will not affect his or her qualification for public assistance. The key is to make sure that you do not leave money directly in the child’s name. The distribution should instead be made to the Trustee of the child’s Supplemental Needs Trust. Along the same lines, be sure that the portion of your life insurance proceeds to be paid out for your child with special needs is held in the trust, as well. Remember, you should consult with an Elder Law attorney to discuss the best way for your Will to be drafted according to your unique situation.

When Should I Establish My Child’s Supplemental Needs Trust?

For parents of a child with a disability, it is important to establish a Supplemental Needs Trust when their child is still young. Even though eligibility for many government assistance programs does not begin until a child is at least 18, it is beneficial to establish a trust before the child is old enough to qualify because it is a preemptive measure that goes a long way in protecting the child’s future.

One major benefit of establishing a Supplemental Needs Trust at a child’s young age is providing a destination for gifts. Once the trust is created, family members may begin providing funds for the trust and designating it as the recipient of an inheritance. This way, collection of trust funds may begin early in life, and the child’s eligibility for government benefits will not be jeopardized should he or she receive a large gift later in life, whatever the age of the Beneficiary.

Another reason for establishing a trust while the child is young is that it provides parents with peace of mind that the child’s needs will be met if something were to happen to them. Having assets secured in a trust ensures that there will be funds available for the child if it is ever unexpectedly needed. In conjunction with establishing the Supplemental Needs Trust, many parents choose to execute their own estate planning documents, which grant assets such as money, stocks, and even a home to the trust.  In addition, they may purchase a life insurance plan to be held in the trust. Following these steps are a great way to maximize the amount of funding available to a child with special needs. For more information about establishing a Supplemental Needs Trust for your child, be sure to consult with an attorney in your state who specializes in Special and Supplemental Needs Trusts.

What Can Be Paid For With Trust Funds?

One of the most important and common questions that Trustees ask is regarding the specific sorts of items that funds from a Special Needs Trust and Supplemental Needs Trust may purchase for the Beneficiary. Generally speaking, there are three important questions to keep in mind when making this decision: 1) Is the good or service provided by government benefits? 2) Is the distribution allowed by the Trust Agreement? 3) Is the distribution for the sole benefit of the Beneficiary?

Let’s say, for example, that the Beneficiary’s transport vehicle needs a repair to its accessible ramp. This repair cost can paid with trust funds if it is not covered through government assistance, if  this type of expense is allowed in the Trust Agreement, and if the distribution is for the sole benefit of the Beneficiary. In most cases, an accessible ramp repair fits the bill. Some other examples of common trust purchases are a new TV for the Beneficiary’s room, a hotel room rental on vacation, a class at a local community college, or non-government funded medical expenses such as massage therapy.

Things may get a little bit more confusing when it comes to paying for food and shelter. Government assistance is intended to cover housing and food, so in order for the Beneficiary to continue receiving all of his or her available funding, it is important to make sure that trust funds do not pay for groceries, regular restaurant meals, rent, utilities, or home insurance. Also, the Beneficiary should not receive cash directly from the trust. Legally speaking, these types of expenditures are an increase to the Beneficiary’s personal income, which triggers a reduction in government funding. However, one caveat to keep in mind is that when trust funds are used for food and shelter costs, there is a reduction of only $1 dollar to SSI benefits for every $3 dollars spent. For some beneficiaries, this tradeoff may actually be the best course of action. That is why it is helpful to consult with an attorney who specializes in Special and Supplemental Needs Trusts. Not only will the attorney explain the full range of goods and services that the trust may provide, he or she will also be able to hash out the best spending options for your given situation.

The National Association of Distinguished Counsel

NADC Badge-2015Luther M. Amundson, of Maser Amundson Boggio & Hendricks P.A., has been selected to the 2015 list as a member of the Nation’s Top One Percent by the National Association of Distinguished Counsel. NADC is an organization dedicated to promoting the highest standards of legal excellence. Its mission is to objectively recognize the attorneys who elevate the standards of the Bar and provide a benchmark for other lawyers to emulate.

Members are thoroughly vetted by a research team, selected by a blue ribbon panel of attorneys with podium status from independently neutral organizations, and approved by a judicial review board as exhibiting virtue in the practice of law. Due to the incredible selectivity of the appointment process, only the top one percent of attorneys in the United States are awarded membership in NADC. This elite class of advocates consists of the finest leaders of the legal profession from across the nation.

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