Presenting a live 90 ‐ minute webinar with interactive Q&A Adult Guardianship, Limited Guardianship p, p and Conservatorship: Legal Strategies Navigating Capacity, Power of Attorney, Jurisdiction, Protective Placement and Other Issues TUES DAY, FEBRUARY 8, 2011 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific T d Today’s faculty features: ’ f l f S tephen M. Worrall, Attorney, GeorgiaFamilyLaw.com : Worrall Law, Marietta, Ga. . Hoynes, Attorney, Lyle & Levine , Marietta, Ga. S chuyler F The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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5 SCHUYLER HOYNES STEVE WORRALL 274 Washington Avenue 109 Anderson Street Marietta GA 30060 Marietta GA 30060 770-421-9400 770-425-6060 shoynes@lylelevine.com shoynes@lylelevine.com steve@georgiafamilylaw.com steve@georgiafamilylaw.com
6 M M th My Mother’s Keeper: ’ K Planning for Incapacity and Strategies for Navigating Legal Remedies When You Can’t
7 Introduction Guardianships or conservatorships Guardianships or conservatorships Legal process utilized when a person can no longer make or communicate safe or sound decisions about his/her person and/or property or has become susceptible to fraud or undue influence. Because establishing a guardianship may remove Because establishing a guardianship may remove considerable rights from an individual, it should only be considered after alternatives to guardianship have proven ineffective or are unavailable have proven ineffective or are unavailable.
Guardianship and 8 Conservatorship Conservatorship Guardian of the person Guardian of the person Guardian of the property “Guardian”: a person appointed by the court to Guardian : a person appointed by the court to make decisions regarding the person of an adult adult “Conservator”: a person appointed by the court to administer the property of an adult to administer the property of an adult
9 Rights That Might Be Affected Rights That Might Be Affected A good guardian will take into account the wishes and desires of the ward when making wishes and desires of the ward when making decisions about residence, medical treatments, and end-of life decisions. The courts will remove only those rights that the proposed ward is incapable of handling.
10 Rights that Might be Affected Rights that Might be Affected When the courts appoint a guardian, important rights of the Wh th t i t di i t t i ht f th ward may be removed. These rights may include the right to: • Determine residence; D t i id • Consent to medical treatment; • Make end-of-life decisions; • Possess a driver’s license; Possess a driver’s license; • Manage, buy, or sell property; • Own or possess a firearm or weapon; • Contract or file lawsuits; • Contract or file lawsuits; • Marry; and • Vote.
11 Due Process Due Process Notice to the individual of all proceedings Notice to the individual of all proceedings. Representation of the individual by counsel. Attendance of the individual at all Attendance of the individual at all hearings/court proceedings. Ability of the individual to compel confront and Ability of the individual to compel, confront and cross examine all witnesses. Allowance of the individual to present Allowance of the individual to present evidence.
12 Alternatives to Guardianship p Living Trusts Living Trusts Representative Payeeship (RP) Healthcare Power of Attorney (Living Will Healthcare Power of Attorney (Living Will, Advance Healthcare Directive) Joint Ownership or accounts Joint Ownership or accounts Powers of Attorney
13 Alternatives to Guardianship Continued Living Trusts May be used as a mechanism to manage propert both prior to and after death property both prior to and after death; Provides details as to how assets and income earned therefrom are distributed after death; earned therefrom are distributed after death; Allows Successor Trustee to manage donor’s financial affairs upon incapacity or disability; and p p y y Not subject to probate proceedings
Alternatives to Guardianship 14 Continued Continued Representative Payeeship (RP) Form of money management designed for individuals who are unable to manage their own benefit checks due to physical or mental disability benefit checks due to physical or mental disability Paid to RP directly, who is then responsible for ensuring basic needs of beneficiary are paid; any funds left may go directly to the beneficiary f d l ft di tl t th b fi i Generally used when dealing with income from SSA or VA SSA or VA These institutions reserve the right to appoint an RP, regardless of legal competence of the beneficiary
Alternatives to Guardianship 15 Continued Continued Living Wills Living Wills Legal document which allows a person to make known his or her wishes regarding life-prolonging g g p g g medical treatments May also be referred to as an “advance directive f for health care,” “health care proxy,” “health care h lth ” “h lth ” “h lth directive,” or “physician’s directive”
Alternatives to Guardianship 16 Continued Continued Joint Ownership Accounts Most simple way to avoid court-supervised conservatorship Authorizes a second party to access bank accounts Authorizes a second party to access bank accounts and to pay bills on your behalf or to manage real property by becoming a joint owner of the property Issues: If home or real property is titled jointly, co-owner will be unable sell without consent of the other owner who must unable sell without consent of the other owner, who must have capacity If joint owner is sued, your assets may be seized as well
17 Alternatives to Guardianship Continued Alternatives to Guardianship Continued Powers of Attorney Powers of Attorney Limited General General Durable Springing Springing
Alternatives to Guardianship 18 Continued Continued Powers of Attorney: Limited This may be limited as to either time or scope Example: You are planning a trip to China, which will last for 60 days; you wish to get your legal affairs in last for 60 days; you wish to get your legal affairs in order before you begin your travels. Since you will be away for home for so long, you decide to name your brother as your agent to handle your financial affairs y g y while you are away. You specify in your POA that the powers granted to your brother cease upon the date of your return home. Further, you limit his power to only those needed to pay your bills – lest he sell your lake house while you’re away!
Alternatives to Guardianship 19 Continued Continued Powers of Attorney: General General Durable Power of Attorney, Like any classic agency General Durable Power of Attorney, Like any classic agency relationship, provides the Attorney-in-Fact with legal authority to act on the principals behalf Often, General Authority shall include, but is not limited to: Using assets to pay everyday expenses and those of the principal’s family; Buying, selling, maintaining, pay taxes on, and mortgage real estate and other property; Collecting Social Security, Medicare, or other government benefits; C ll ti S i l S it M di th t b fit Investing money in stocks, bonds, and mutual funds; Handle transactions with banks and other financial institutions; Buying and selling insurance policies and annuities for the principal; y g g p p p ; Filing and paying taxes of the principal; Hiring someone to represent principal in court; Managing principal’s retirement accounts.
20 Protective Power of Attorney DURABLE POWERS OF DURABLE POWERS OF The Need for a More ATTORNEY:
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