Lins Law Group Blog

Protecting Special Needs

Many families struggle daily with the demands of caring for a family member with health or developmental challenges. Whether it is autism, Parkinson's, birth defects or some other debilitating condition, the challenges can be immense. Perhaps one of the more challenging aspects which these families face is making sure that resources are available to provide medical and other necessary benefits. Often these families can only turn to governmental programs such as SSDI, SSI and Medicaid to meet the overwhelming demands. For example, take the situation where a child, age 6, suffers from autism. Depending on the circumstances, the family may only be able to get medical coverage through Medicaid. The child could live many, many years and need benefits during that time. If the child lives 60 years, and the average medical and other care bills for the child average $10,000 per year, then the benefits are...well...huge.

Where many families fail to prepare is in the event the parents or other family members die and leave inheritance monies to the child. That inheritance could jeapardize the child continuing to get benefits. So if the inheritance is not enough to provide for the child's needs over a lifetime, those lost governmental benefits would have an enormous impact. Instead, families with children or other members on these governmental programs should set up an irrevocable trust (also called a special needs trust or "SNT"). If this is done correctly, the inheritance monies can go into the SNT and can be available to provide for the child over his or her lifetime. So long as the SNT does not duplicate governmental benefits and otherwise complies with the limitations set forth by the applicable governmental program, then the benefits will continue uninterrupted. However, an SNT is a comlicated planning document which must be prepared by an attorney skilled and experienced in drafting these kinds of trusts.

For more information, visit www.linslawgroup.com 

Five Steps to Protect Your Children

For parents with minor children, there are at least five steps to take to protect their children in case of a catastrophic event involving the parents. While the chances of both parents dying or becoming incapacitated at the same time may seem remote, in today's fast-paced, technology driven world, it can happen. Whether it involves a car accident, an airplane crash or a criminal attack, the potential for the unexpected is not beyond possibility. The reality is that parents cannot and should not wait until a crisis to try to address these issues.

Here are five considerations to address:

1. Appoint a guardian of the children in the event both parents die or become incapacitated.

2. Have an emergency plan to provide for the children in the first 24-72 hours after a crisis.

3. Have a trust in place to hold, administer and distribute assets for the children's benefit.

4. Leave instructions for the guardian and trustee regarding how you want the children to be cared for, raised and provided for.

5. Parents should make sure that they have adequate monetary resources available to assist the guardian in raising the children.

In order to address these considerations, the best vehicle to do so is through a skillfully drafted Will or Living Trust. Once these documents are in place, it is equally important for the parents' loved ones and trusted advisors to know where these documents are located and to have access to them. There is little benefit to having a plan if no one knows about it or if no one can access it.

For more information, visit www.linslawgroup.com

Staying Married: To be or Not to Be?

Many times clients come to me for a family law consultation when they have problems in their marriage. We usually begin by discussing their particular marital situation. This often involves recounting past events and the present situation. How long have they been married? Are there any kids? What assets have they accumulated? Is one or both spouse working?

After we go through these discussions, what I often hear is that the client is unhappy...often VERY unhappy...but they are not sure whether they want to go through with a divorce. Sometimes I get the feeling they are looking to me for guidance on what to do. Of course, my role as attorney is not to advise whether to get a divorce but to advise how to get divorced and what issues, considerations and determinations come into play. I usually ask if the client has sought any professional advice from a marital counselor or therapist. As an attorney, I am not trained to determine the whether, just the how, when, and where, of getting divorced.

Sometimes clients decide initially not to divorce and to either "stick it out" or to "work on it." However, more times that not, they eventually are back in our office, ready to proceed. Unfortunately, sometimes they are more unhappy than ever and their marriage, rather than being saved, has instead gone down the tube.

Even though it is not my role to tell a client whether to divorce, as a legal professional and as a person I do have my own opinion about whether getting divorced is better than staying in a bad marriage. Admittedly, going through a divorce is not pleasant. In fact, it ranks among the most stressful and unpleasant events in life. It takes its toll on the spouses and on any children.

Nonetheless, I believe that being divorced is better than being miserable in a bad marriage. Why do I say this? First, when a person divorces, at least he or she has the prospect of moving on and finding happiness. He or she may meet someone who appreciates and treats them with love, kindness and respect. If they stay in a bad marriage, it is hard to move on and to develop a meaningful relationship with someone special. Another reason for my opinion is that when someone is unhappy in a marriage it impacts those around them. For example, children usually know when parents are not getting along. The parents' unhappiness can spill over to the children and in the long run, it can impact their well-being and happiness. In addition, an unhappy marriage can effect a person's health (mental, emotional and physical). Depression, unmanageable anger, anxiety, etc. are all potential results of prolonging a bad marriage. The bottom lines is that life is to short and too precious to live it being unhappy.

In sum, when clients have an unhappy marriage, I recommend that they seek advice, both personal and professional. Hopefully, if the marriage can be salvaged, this will help. However, if the problems persist to the level that the person is very unhappy, I recommend proceeding with divorce rather than prolonging his or her unhappiness. Life is precious and should be abundant. Living life with a spouse who does not show his or her spouse love, kindness and respect is not consistent with the abundance of life.

New Year's Resolutions-Assess Your Protection

As the year 2008 begins, my advice to clients, friends and family is to take steps to protect yourself, your business and your family. The first step is to take the time to assess your situation and evaluate what areas you have protected and what remain exposed. In making this assessment, you can accomplish a lot on your own by simlpy asking some basic questions. For example, these are some of the issues to be addressed:

Do you have an up-to-date Will or Trust?

Does your Will or Trust designate primary and alternate beneficiaries, executors/personal representatives, trustees and guardians of minor children?

If you have a Trust (a Living Trust or a Revocable Turst), have your assets been transferred into the Trust or has the Trust been designated as beneficiary?

Do you have a Living Will that expresses your desires if you should develop a terminal illness or be in a permanent vegetative state?

Do you have a Healthcare Power of Attorney which appoints someone who can make medical decisions if you are unable to do so?

Do your Living Will and Healthcare Power of Attorney comply with the new HIPPA laws by authorizing physicians and hospital staff to discuss your situation and care with your healthcare agent/surrogate?

Do you have a Pre-Need Designation of Guardian where you designate who you would want to act as your guardian if one needed to be appointed?

Do you have a Durable Power of Attorney which appoionts someone to act for you on business, personal and financial matters if you should become unable to act for yourself?

After you have completed the assessment and evaluation process, then you should act to correct any "gaps" in your protection. This most likely will involve going to see an experienced estate planning attorney. Set up a consultation and discuss with the attorney your needs and concerns and have the attorney prepare any necessary documents.

If you resolve to listen to these suggestions, you will enter 2008 with the peace of mind that comes from knowing that you, your family, your business and your wealth are protected.

To learn more, visit www.linslawgroup.com  or contact me at mike@linslawgroup.com .

So what's wrong with probate?

A client came in the other day and said that his mother had died but that her estate should be easy since she had a Last Will and Testament. Little did he know that having a Will does not avoid probate, all it does is give the probate court a "road-map" to follow in administering an estate. Issues like appointment of an executor or personal representative, appointing a guardian for minors and designating beneficiaries are all addressed in a Will. However, a probate proceeding still must be opened in order to appoint the executor, to appoint the guardian, transfer assets titled in decedent's name, etc.

So what's the problem with probate? There are a litany of reasons that probate is worth trying to avoid. These include: 1) Probate is very slow and in some cases can take years to complete; 2) Probate is expensive, sometimes costing up to 3% of the estate's value (on a million dollars, that would be $30,000!); 3) Probate does not maintain confidentiality about beneficiaries and assets; 4) Probate requires court oversight; and 5) Probate does not provide protection to a person until they die (it does nothing in the event of disability or incapacity).

So what is the alternative to probate? Effective estate planning using Living Trusts, beneficiary designations, pay-on-death designations, etc. all minimize or avoid probate. More on those on another blog. For more information, see:

www.linslawgroup.com

If only she had...

Recently, a person close to me had a massive storke. She was in her early 40's. By all accounts, she was too young and seemingly healthy. This was certainly not expected, especially by her. The stroke has left her debilitated and unable to perform even the most basic activities of daily living. She has to be fed, bathed, dressed and can only communicate by vague gestures using her only remaining slightly-usable hand. The worst of it is that her prognosis for a decent recovery is very uncertain. This will most likely mean that she will need someone to act for her and make decisions on her behalf. Unfortunately, she is single and she had never executed a Living Will, a Durable Power of Attorney or a Healthcare Power of Attorney. Her present condition makes it questionable whether she has the cognitive capacity or the physical abilty to execute any of these documents at the present time. Who will have the power to pay her bills, to deal with her insurance company, to speak with her doctors and to decide on future treatment and care? What everyone who loves her keeps saying is: "If only she had....If only she had taken care of executing these documents before any of this happened."

As a practicing attorney over the last 20-plus years, I have heard the same lament repeatedly. I have seen families torn apart and their accumulated wealth destroyed because they never got around to signing these basic documents. What is amazing is that the cost of these is usually less than $500.00 yet not having them in a time of need can leave a person unprotected and can ultimately cost tens of thousands of dollars  more (such as for a guardianship)in order to address the same protections that these simple documents provide. It's really a shame..."If only she had..."

I hope you will not ever be faced with such a devastating health crisis, but if you are, don't cause anyone to have to say about you: "If only she had..."

www.linslawgroup.com