Downs Law Firm, P.C.

Durable Power of Attorney

Guardian and conservator

Is a Guardian Needed? Consider Other Options

Some of the options are less intrusive than a guardianship or a conservatorship. Sometimes, guardianships and conservatorships are necessary when some members of a family believe a loved one is becoming mentally or physically incapacitated. However, there are other options, according to On Common Ground News in the article “Alternatives to guardianship and conservatorship.” What is the difference between the two? These are legal proceedings that vary in name from State to State. In Maryland, these proceedings are guardianships and take two forms: Guardian of the person and guardian of the property. A Guardian of the person decides on living situation and most medical care: The Guardian of the property handles the property and lets the appointed person their ward’s finances and assets, buy and sell businesses, and enter into commercial transactions. Either process will involve a court proceeding, ordinarily with an attorney representing the family and a separate attorney representing the incapacitated person. Guardian of the person can sometimes be avoided by relying on the Maryland Health Care Surrogate law, which basically allows next of kin to make medical decisions for someone who does not sign a living will or health care power of attorney. This can be a good alternative to Court if the family is united in their decision-making. It doesn’t work well if they are not. Alternative options for the Guardian of the property include a Durable Power of Attorney (DPA), which permits a competent individual to name another person as their legal representative regarding finances and other matters. There can be specific instructions, and this also can include an agent who is named to make health care decisions. A DPA is broader in power than a living will and applies any time the individual becomes incapable of either making or communicating health care decisions on their own behalf. A second alternative is creating and funding a revocable living trust, where you can appoint a chain of command to manage assets in the Trust. Many of our clients name a trustee child or other individual as a co-trustee to be in the wings to manage assets at disability. Options like powers of attorney and trusts have the distinct advantage of allowing the person to lose the capacity to make decisions while there is still time. Perhaps the last stage can set the stage for future family functioning or dysfunction. We recently represented a family with a child that is developmentally delayed, as has recovered a personal indury settlement for damages that are causing the delay. We were in the Howard County Circuit Court asking a Judge to consider allowing the funds to be placed into a special needs trust format so that they would not need to be spent before the State could render aid. The Judge approved that my clients were able to make plans for their child that would not involve ongoing Court intervention and allowed our request. She recognized that the family was capable, caring, and trustworthy to do so. An estate planning

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Brian Wilson has a conservator

Brian Wilson Has a Conservator

Planning for incapacity might sound as fun as a rain-soaked beach party, but it’s as essential as remembering the lyrics to “Wouldn’t It Be Nice” at a Beach Boys concert. We Baby Boomers are older now…

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Dementia and Alzheimer's

Selecting an Executor (or Trustee)

Selecting an Executor (or Trustee)? If you can’t pay your bills due to injury or death, selecting an Executor (or Trustee), often proves to dictate how well the plan will work. Who do you pick as the quarterback? In a Will, Trust, or Power of Attorney, you must select a money managing chain of command. Who are you going to hand the checkbook to? Although the role has different names for different documents, the considerations are the same. They all serve as  fiduciary, who you trust to stand in your shoes and act for you when you can’t. In a Power of Attorney, this fiduciary role is called an “Attorney-in-Fact”; for a Last Will and Testament, this is an executor, and for a trust, it’s the trustee. Selecting fiduciaries becomes more accessible when the role is understood. A fiduciary is someone empowered to control different assets for another person, usually the intended beneficiary of the assets. The fiduciary must put the fiduciary’s interests aside and act in the beneficiary’s best interest, even when doing so is contrary to the fiduciary’s interests. Who Can Be a Fiduciary? A fiduciary can be anyone with legal capacity, including family members. Suppose you are not comfortable with a relative controlling your assets as a fiduciary. In that case, you may prefer to have a non-family member or even a financial institution serve in that role. For example, an estate planning attorney is a fiduciary by the nature of her legal and ethical obligation to act in the best interest of her clients. Still, an attorney also may serve as a fiduciary for an estate, a person, or a trust. The fiduciary appointed to administer a trust and manage its assets is a trustee. If the trust is created under your last will and testament to administer the inheritance for your beneficiaries, then such trust is known as a “testamentary” trust. On the other hand, if the trust is created under your revocable trust established during your lifetime, then the inheritance trusts come into play upon your death. Both inheritance trusts are irrevocable; the difference is that the “testamentary” trust requires probate, and the other does not. The fiduciary nominated by you to carry out the probate and administration of your Last Will and Testament is an executor (or personal representative). The executor must first receive permission from the court to carry out the executor’s responsibilities. Their authority to act comes into effect only after the last will has been presented for probate and the court appointments that person to serve. How Do I Select the Best Candidate to Be My Fiduciary? Ordinarily, the person doesn’t need to be a financial expert: pick someone honest and reliable. They can hire experts, but there is no substitute for character. Selecting a fiduciary to take care of your financial and legal decisions at incapacity or death can be more complicated than deciding who you want to inherit your estate. If your family includes multiple marriages or has

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Dementia and Alzheimer's

Estate Planning Can Prevent Exploitation

According to experts, despite increased phishing emails and robocalls, it is far more common for financial exploitation to be committed by people who know the victim, such as relatives, caregivers, neighbors, or ‘friends.’

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preparing for a health crisis

Preparing for a Health Crisis?

Some people think that, because their assets are jointly owned with a spouse or are in a trust, they do not need a Power of Attorney, or that if they become incapacitated, their spouse automatically has the authority to make medical decisions on their behalf.

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