Guardians vs. Conservators

Guardianship Versus Powers of AttorneyOne of the most common questions I get as a practicing elder law attorney is, what is the difference between guardianship and a power of attorney? A power of attorney is a document that a person executes when they are competent to appoint someone to be their agent for either healthcare matters, financial matters or both. The defining characteristics of powers of attorney is that it is a voluntary action by the person, and it can be revoked at any time so a power of attorney cannot be used to trump someones free will in order to place them in a facility for example, against their wishes.A guardianship is a process where one typically files a pleading, requesting to be appointed as a persons guardian.  In this case, we must demonstrate that the person we seek to protect is incompetent to manage either their healthcare, or their finances, or both.The guardianship typically comes about in two primary ways. First, if the person we seek to protect never executed a power of attorney, and now is incapable, a guardianship would be necessary in order to handle things like an admission to a hospital or long-term care facility because no one has been appointed to consent to treatment for them.  Second is a situation where the person we seek to protect is actively combative to the plan in place to handle their health matters. In this case, we must seek guardianship in order to overcome their wishes, particularly if they are unwise. For example, if your parent develops dementia, but insists that there is nothing wrong with them, that they should continue to drive and live independently and manage their medication, despite evidence that those things are dangerous in their current condition, guardianship is typically necessary in order to restrict their freedom.In some states, like Florida, the guardianship will also cover financial matters.  in Alabama, the conservatorship is established at the same time as a guardianship in order to handle healthcare matters for those cases where there is no power of attorney, and the conservatorship is necessary in order pay their bills, access finances, and so forth.To establish financial guardianship, no matter what its called, we typically must be bonded so the person who is applying must be credit worthy and able to obtain a bond from a surety company. This ensures that the persons financial well-being is well taken care of.  If there is no one available, or if no one wishes to handle finances, every county typically has, or can appoint someone, as a county conservator to serve as that persons conservator.  This is helpful in cases where its a very difficult or complex financial situation.  Then it may be preferable to have a professional appointed and giving a relatively small fee for doing so.  This leaves the guardian to care for the healthcare of the individual without the added stress of complicated financial matters. Contact an elder attorney for more information about what your needs are and please dont put off executing a power of attorney in favor of those people that you trust as soon as you can to avoid what could be difficult and unnecessary proceedings in Probate Court down the road.This article was contributed by Kyla Kelim with Aging in Alabama.  Kyla is an experienced Elder Law attorney.  Contact Kyla at 251-281-8120.

What do you know about testamentary trusts?A trust protects your assets and determines where those assets will go once you are gone. Three common types of trusts are a revocable trust, an irrevocable trust, and a testamentary trust.Most trusts, like revocable and irrevocable trusts, are made and actively used while the trustor (or the creator of the trust) is still alive. In contrast, a testamentary trust only comes into being after the trustors passing. A testamentary trust is created based on explicit instructions written into a will. In it, a trustee, (or the person who manages the assets on behalf of beneficiaries of the trust) is appointed and given instructions on how to distribute the estate. The trustee can decline the position. If a trustee does decline the position, a court can appoint someone to act as trustee. It is best to select a trustee that is willing and able to administer your estate after you are gone in order to limit the courts involvement. Advantages of testamentary trusts:There are many advantages to creating a testamentary trust. The following are reasons that you may want to consider setting up a testamentary trust.1. A testamentary trust can establish that assets cannot be paid to beneficiaries until certain conditions are met. This is especially helpful for parents who wish to condition the receipt of funds for children. For example, you may condition the disbursement of assets on a child reaching a certain age, graduating from college, or marriage. 2. A will can have more than one testamentary trust, meaning that there is no limit to the number of beneficiaries one can have. This ensures that assets will get distributed according to your desires, depending on the conditions you set. 3. Creating a testamentary trust is inexpensive. A testamentary trust does not come with the same costs as establishing a living trust. This can be beneficial if you cannot afford to establish a trust because the cost of creating a testamentary trust comes out of the estate. 4. There are tax benefits in using a testamentary trust as opposed to another type of trust. Testamentary trusts only require payment of income taxes on the trust as a whole. This means that the beneficiaries are not required to pay taxes on their distributions from the trust.Disadvantages of testamentary trusts:There is one major downside to establishing a testamentary trust: a testamentary trust must go through probate. Probate is the court procedure by which assets are distributed after an individual has passed away. Probate can be extremely expensive and lengthy. Assets cannot be distributed until probate is complete and assets are then transferred into the trust.Knowing what type of trust is right for you can seem confusing and difficult. We are here to help you decide what plan is right for you based on your individual circumstances and needs. If you have any questions about how to plan for your future and the future of your loved ones, contact us today at 385.334.4030 or email@skvlegal.com.

Funding your revocable trust is just as important as creating it. However, many people dont know what funding a trust means. Funding a trust is accomplished by retitling assets into the trusts name rather than your own. Incorrectly funding a trust can become very problematic. Consequences of not re-titling assets:There are a variety of reasons why we require and help our clients retitle their assets into the trusts name. Here are three reasons that you should retitle your assets: 1. Your assets may be subject to probate if they are not retitled. Probate is the legal process by which assets are distributed after death. It is best to avoid probate because it can be time consuming and expensive. And if your assets are owned by your trust and not you, they do not need to go through this process in order to be dispersed. 2. It makes the administration much simpler. When assets are already owned by the trust by retitling, there is less room for confusion about asset ownership and distribution. 3. Retitling can help protect your assets from lawsuits, creditors, and people you may wish to keep away from your assets. The whole point of creating a trust is to make a plan for how your belongings will be handled. But, if they are not correctly titled in the name of the trust, the plan you so carefully created flies straight out the window. What assets need to be retitled:A revocable living trust protects your assets and determines who your assets will go to once disbursements are made. To begin creating a revocable living trust, think about what assets you have and who you want to leave them to. As weve said, retitling your is a crucial step in creating a trust because it effectively transfers ownership of the asset to the trust. Titling, as a legal term, identifies who owns an asset. When it comes time to disburse the trusts assets the trust has the power to give out the assets it owns. Certain assets must be retitled in order to pass out of your possession and into your trust. These include:Bank accountsRetirement accountsLife insuranceHealth insuranceInvestment accountsReal estate Vehicles We would be happy to help you determine if your assets need to be retitled, because chances are, they do.How to retitle assets:Funding a revocable living trust involves transferring assets from the trustor, or the creator of the trusts individual name to the name of the trust. This means literally changing the names on your assets from your name into the name of the trust. Retitling assets is a straightforward process. However, it does differ from asset to asset.For real estate, retitling involves a deed. For example, if you own a home, the home is currently deeded in your name, even if there is a valid mortgage. In order to change the title of your house, deed it from yourself and into the trust. This can be achieved through a Warranty Deed or a Quitclaim Deed. The deed must then be signed, notarized, and recorded in the county where you live. To retitle a bank/ retirement/ investment/ insurance account, simply contact the bank or institution that holds the asset and request a change in ownership from your name to the trusts name. You can also request that the Trust be designated as the accounts pay on death beneficiary if you would like to retain ownership of said account while you are still living. We should note that the institution that manages your asset may require documentation stating that you are trustee of the trust. Correctly funding your revocable living trust by retitling your assets is the only way to ensure that you are correctly passing ownership and into the ownership of your trust. We want to help you understand how best to protect your assets for smooth and effective administration. Reach out to our team today at 385.334.4030 or email@skvlegal.com.