Millions of individuals are affected by dementia in their lifetime. Unfortunately, it is usually after a medical crisis like dementia hits that many families begin to think about estate planning, and talking to their Marietta Estate and Elder Lawyer.
What people don’t realize, however, is that it may be “too late” under the law to make a plan after dementia strikes. This is usually the case when dementia is in an advanced state. In order for legal documents to be valid in Georgia, the person signing them must have “testamentary capacity.” This means that he or she must fully understand the implications of what is being signed.
Does that mean that your loved one can no longer sign legal documents after a diagnosis of dementia? Not necessarily. Dementia is a progressive condition, and mental capacity can be fluid in earlier stages. Your loved one may still be considered mentally competent to sign legal documents, even with a diagnosis of dementia if he or she:
- Can understand the nature and extent of their property
- Can remember their relatives and descendants
- Is able to articulate who should inherit their property
- Can understand what they are signing
- Can understand how all these things relate and come together to form a plan
In some instances, a verification from a physician about the individual’s competence may be required and the ability of whether a person with dementia can sign legal documents will rest in the doctor’s hands.
If the physician determines that your loved one cannot execute legal documents, the family must then turn to the court system, and likely the process of Guardianship and/or Conservatorship, in order to take over control of the senior’s affairs in the absence of a current Trust, Power of Attorney, or Health Care Directive.
Whether your loved one can sign legal documents following a diagnosis of dementia really depends on his or her individual battle with the disease. Talk to a Marietta estate and elder lawyer, as well as your loved one’s doctor for an idea of what your options may be. Be sure to go through all the proper channels as your loved one’s legal documents could be contested later on if you have them quickly signed while there is still a question of mental capacity out there.
If you need assistance getting started and evaluating your loved one’s situation, we invite you to contact our Marietta GA estate and elder law attorneys at 770-425-6060 to schedule a consultation.
When a child with special needs turns 18, parents must begin to think about sensitive issues such as long-term care planning and how to legally stay in control. Adult guardianship is one such vehicle that allows parents to have legal and financial authority over their children when their parental rights would otherwise be terminated.
Hiring a Marietta Guardianship Lawyer to petition to become a guardian is a lengthy legal process, but it may be appealing to parents still caring for young adults with disabilities who aren’t ready to be independent. Before beginning a petition for legal guardianship in Georgia, consider the following first:
Your child loses a great deal of freedom.
If you gain guardianship, your child loses the freedoms he or she would have as an adult. The child will lose the right to handle his or her own finances, make healthcare decisions, choose residency, or make any other decision that the court has given the guardian power to decide. For young adults that are high-functioning and could possibly lead an independent life, this loss of freedom is a very real concern that families must consider.
You have a great deal of responsibility.
Your responsibility may be an extension of the things you did for your child when he or she was young. As a guardian, you have a responsibility to care for whatever the court has entrusted to you, and failing to do so could bring legal consequences. If you’re responsible for your adult child’s finances and you mishandle them or use his or her SSI fraudulently, you may not only lose guardianship but be liable for civil damages or be criminally charged.
Your rights could be limited.
Unlike guardianship of a minor child, guardians only gain authority over the things the courts give them authority over, and nothing the petitioner doesn’t ask for. Therefore, if a parent only has medical guardianship, for example, and not financial guardianship, that parent cannot make financial decisions on the child’s behalf.
Likewise, your guardianship doesn’t allow you to keep your child from engaging in adult behaviors you would prefer they didn’t. They’re free to do whatever they’re otherwise entitled by law, like drinking, smoking, dating, or having sex.
Your guardianship isn’t transferable and ends with you.
Guardianship either ends when you die or when the court ends it. You can’t pass on guardianship of your child with special needs to a spouse or to a surviving adult child. They can petition the court and go through the same guardianship process – and expense. The court grants guardianship to someone both by how much the ward needs a guardian and by how fit the petitioner is. Anyone who wants to be guardian after you must go through the same process that you did.
Are there alternatives?
There are alternatives to guardianship. One is to create a special needs trust to handle financial affairs. The trustee will use the trust to pay for the child’s expenses. If your child is high-functioning and can sign legal documents, he or she can also name the parent as Healthcare Agent and Power of Attorney so the parent can help the child make decisions without the child losing their rights. Many of these alternatives depend on the physical and mental needs of the child and must be evaluated carefully by your legal and medical team.
If you would like guidance on how to pursue a guardianship or a guardianship alternative for your young adult with special needs, contact our Marietta GA Guardianship lawyers at 770-425-6060 to schedule a consultation.
Now that the champagne has been consumed and the party horns have been put away, it’s time to really begin the New Year. You may or may not be sticking to those resolutions you made on January 1st, but even if they are a vague memory at this point, I challenge you to add one more resolution to your list — review your estate plan.
Here’s a checklist to get you started:
- Look for your estate planning documents and see if they are still in the place where you left them. Check your fireproof safe, safety deposit box, or other location where you store the actual documents. In addition, make sure your electronic copies are where you last left them. You may have chosen to keep them on a CD or on your home computer, in any case, make sure they are still accessible. Additionally, make sure your heirs, executor, or trust administrator know where they are.
- Review your children’s long-term and short-term guardian nominations. Has anything happened either in your children’s lives or your guardian’s lives that may make you rethink things? Has the person (people) you’ve named as guardians moved, had a child, divorced, or remarried? If so, does this impact your decision? Have any changes happened that might make you rethink the people you named as short-term guardians?
- Did any of your children turn 18? If so, you need to make sure that they have the proper legal documents in place. They may not have many assets so they may not need a full-blown estate plan, but they will need a signed healthcare power of attorney and living trust in case something happens to them. Without these legal documents in place, you may not be able to speak for them.
- Update, review, or consider a pet trust. If you currently have a pet trust, has anything happened that would make you rethink it? Did something happen to your pet that may mean there are more medical expenses than you thought? Did you get a new pet this year that you want to be sure will be cared for if something happens to you?
- Think through 2014 and list any substantial assets you may have acquired. If you have new assets, make sure they are transferred into your trust. If they aren’t, those assets could end up in probate even though you thoughtfully created a trust to avoid this.
- Review and think about your asset distribution. Does your trust still reflect your wishes for how you would like to distribute your assets? Again, life events such as births, deaths, marriage and divorce may impact the decisions you made about this.
- Check your insurance policies. Does your life insurance still reflect an amount that would support your family if something happens to you? Has something happened in the past year that would require you raise that amount?
- Are you still happy with your decision regarding who should administer your estate? Is he or she still willing to accept this duty? Has anything happened in the last year that would make you wonder whether this person is still able to perform this function? If you are in doubt, you may consider discussing the person you chose and make changes if necessary.
- Update your family’s legacy. Each year you should update your written legacy whether it is in writing or recorded. Be sure to note family member milestones and accomplishments. This will most likely be the most valuable part of your estate plan so be sure to spend time on this.
As I tell my clients, your estate plan is a document that changes just as your life changes. While every change in your life doesn’t mean that you need to update your estate plan, it is important to think through the past year’s events and experiences to make sure that your estate plan will still take care of your family just has you planned.
The Single Most Important Thing You Can Do Now to Feel Better About Yourself As a Parent – and Leave the World a Better Place – No Matter How Much Money You Have in the Bank
If you are like most of the parents I know, you feel guilty. It’s what parents do.
Whether your guilt is about not enough time with the kids, too much time with the kids, hovering incessantly, or being too laid back, you are worried you aren’t doing the right thing by your kids in some way.
Just the fact that you are worried about it tells me, you are an awesome parent. Bad parents don’t worry that they are being bad parents, they just are bad and don’t care.
And, at the same time, I know you’d appreciate a quick, effective and pain-free way to remove that guilt and start really feeling great about how much you do for your kids. Plus, make sure they know exactly how much you love them, no matter what.
I know that’s what matters most to me. I know that kids who feel loved as children grow up to be better people, better parents themselves, more successful, happier and contribute to the world more.
I’ve seen it again and again and been frequently surprised by how much the feeling of being loved can overcome any number of circumstances for a child.
Broken marriages, early death of parents, even being given up for adoption, each of these circumstances could lead to trauma, feelings of abandonment, persistent anxiety and fear. People who experience these challenges will have a harder time in life, be less able to maintain relationships and tend to do less well in their careers.
And, if a child feels loved through these exact same circumstances, truly and thoroughly loved and accepted, he doesn’t just survive them, he thrives. He takes the hard times and turns them into teachings. He is a joy to be around because he is so in service to life itself. He is loved by all because he knows the love of his parents.
It’s what makes life really matter, right? Knowing you’ve parented your kids well and left them well-prepared for the future — safe, secure and full of self-love.
Is there really anything more important than that?
But what have you done to prepare for the day you can’t be there for them? Will they feel your love then?
It’s not a pleasant topic, I know. It used to frighten me to paralysis when I used to think about it. Because I didn’t know what to do to make it okay. I love my children so much I couldn’t bear to think about them living on after me because I couldn’t envision who would care for them like I do.
And I knew that if I didn’t make decisions, a Judge would make them for me. I knew it wouldn’t have been what I wanted and my kids would be left wondering – why didn’t mom care enough to take care of the things that really matter?
Day after day the Courts process cases of families who have lost a loved one and now it’s left up to the overworked, underpaid, harried and hurried Judge to make the critical decisions you’ve struggled with yourself, and to do so with limited or no information.
Decisions such as who will be the guardian of the children left behind, who will make financial decisions for the family until all children have become adults and who will take care of ensuring it’s all done well are left up to a stranger who doesn’t know you, love you, or really even care about you.
When you make the decisions about these things (and document the decisions properly), you are doing the right thing by your children, letting them know they can feel secure, confident, and not grow up with the kind of issues that will keep them from having successful relationships, lives and careers.
Engaging in the process of making decisions for your kids care if something happens to you and getting clear on the kind of beliefs you want them to take into the world if you aren’t there to raise them makes you a better parent.
The best part is that even though you are planning for a long-time in the future or an eventuality that may never happen, it makes you a better parent immediately.
When you clarify the way you want your children raised and the beliefs you want them to carry into the world, you naturally begin to be more conscious about your relationship with your children now.
If you’d like to explore this process of Family Legacy Planning with a metro Atlanta family legacy planning attorney, come in for a visit with me and in just 90 minutes or so you’ll know exactly how you want your children raised, what beliefs and values you want them to take into the world and pass on to their kids, and who will be the best people to do that, if you can’t be.
Normally, a Georgia Family Legacy Planning Session is $750. It’s guaranteed to be a game-changer for you as a parent. You’ll be closer with your children. More relaxed. And more able to stay connected to yourself and what really matters through the parenting process.
The first three families to call us this month at 770.425.6060 and mention this blog post can schedule the Georgia Family Legacy Planning Session and we will waive the session fee. Be sure to mention the Blog and the code “ParentsLove” so you don’t get charged.
Image courtesy of photostock at FreeDigitalPhotos.net
As a Marietta GA wills lawyer and a former Cobb County divorce lawyer, I can’t stress enough how important it is for all parents to create a comprehensive plan that will protect their children should the unthinkable occur.
But what happens if you are divorced and can’t come to an agreement with your ex-spouse as to who should raise your kids if something happens to you? Should you go ahead and document your own guardianship wishes anyway? And just whose wishes would hold up in court?
In most cases, if your child’s biological parent is still living at the time of your death and you share custody, your children will be raised by the surviving parent, unless there is some clear reason why that should not happen.
There is nothing you can do about this unless you can prove that the child’s biological parent is unfit to raise your child and make a compelling case as to why your guardianship nominations should be honored under the circumstances.
Examples of this might include a severe drug addiction, criminal past or a history of abuse.
However, if this is unlikely, the next best thing to do is name guardians anyway so that your wishes for the care of your children will be known and taken into consideration should your ex-spouse should also pass away before your kids reach the age of 18.
This is especially important in the event your ex-spouse did not legally document his or her guardianship wishes upon passing, as your wishes would then be given priority over, say, an unwilling step-parent (just think back to the Cinderella story for a chilling example of this).
Finally, if you are a single parent and have concerns not only about guardianship but also concerning your ex-spouse handling any assets you would leave to your kids if you passed away first, I encourage you to meet with a Marietta Georgia wills lawyer right away so you can protect such funds and ensure they are used for your children’s care only in your absence.
If you need help getting started with this, please feel free to give our office a call at 770-425-6060 and request a Georgia Family Treasures Planning Session. These sessions are normally $600, but you can come in free of charge with the mention of this article. Again, call 770-425-6060 to reserve your spot (limited to first 10 callers).
All parents should have a plan in place should an emergency strike during should hours, according to Marietta ProtectMyKidsPlan™ attorney, Steve Worrall. Preparations includes naming short-term guardians, listing the right people on school emergency cards and leaving detailed instructions with babysitters to avoid involvement with social services.
Marietta, GA – “Do you think a school emergency card is enough to protect your kids if something happens to you during school hours?” asks attorney Steve Worrall to a crowd of parents recently attending his popular ProtectMyKidsPlan™ Seminar in Marietta.
The majority of the room raise their hand yes. A few parents are undecided. Yet from a legal standpoint, all of them are wrong.
“Contrary to popular belief, a school emergency card will not protect your children from spending time in the hands of social services if something tragic happens to you, “says Worrall. “The emergency card only gives named contacts permission to pick your kid up if they are sick, not take short-term custody of them if one or both parents are killed or incapacitated in an accident,” he adds.
For this reason, experts such Worrall recommend parents create an emergency plan prior to going to back to school so there is no confusion or legal headaches should tragedy strike. According to Worrall, this plan can be created in 3 easy steps:
- Legally name short-term guardians for your kids– Short-term guardians are the people who have legal permission to care for your child until the surviving parent or long-term guardian can arrive. This should ultimately be someone who lives close by and one who will comfort your children in an emergency.
- Make sure your short-term guardians match those named in the school emergency card– In addition to listing friends and neighbors who can pick your child up from school if he or she gets sick, it’s equally important to list the full contact information of your short-term guardians for true emergencies. Without this information, your children would be placed temporarily in the custody of social services until the surviving parent or legal guardian can arrive.
- Make sure the babysitter knows what to do if you don’t return home– It’s extremely important that parents give their a.m. or p.m. babysitters detailed instructions on what to do and who to call if they don’t return home. In most cases, a babysitter will panic and turn to the police for help, again opening the door for social services to temporarily take custody of your kids until a long-term care provider can arrive.
“Creating a back-to-school emergency plan is so easy— and something that will greatly pay off if a parent is injured or killed during school hours,” Worrall says. “The first few hours after an emergency are the most painful for a child, so it’s important for parents to make sure their kids spend that time with people they love and trust, rather than in the arms of the state,” he adds.
For more information on Cobb County family law and family estate planning attorney, Steve Worrall, please visit call 770-425-6060 or fill out our contact form. For more information about or to attend a ProtectMyKidsPlan™ seminar, sign up here.