Monday, May 23, 2011 How Can I Legally Provide for My Incapacitated (or Disabled) Child?
As anyone with a disabled family member knows, planning for the care of an incapacitated person is a complex and challenging undertaking, but it is very important. While the incapacitated individual is a minor child (under 18 years of age), he or she is protected by the same statutes that protect other children including the Child Custody Act. Under this act, a Family Court judge can order either you or your wife or husband to take custody of the child and pay support including medical bills. However, once your incapacitated child reaches age 18, those protections go away. Michigan is one of the few remaining states that does not under any circumstances permit a Family Court judge to order support for a child after he or she reaches 18 in light of special circumstances (such as college attendance or disability). The only concession in the Michigan Child Custody Act is that jurisdiction over the child can be extended until the child is 19 ½ years old if that child is a full-time high school student living with one of his or her parents on a full-time basis. This limitation in the Michigan Child Custody Act has forced parents of incapacitated children to get creative in planning for the future of their children.
How Can I Get Authority to Make Decisions for My Incapacitated Adult Child?
If your disabled adult child is not able to make important decisions for him or herself, then the Probate Court can determine that he or she is incapacitated and can appoint a guardian. A guardian has the authority to make day-to-day as well as emergency decisions regarding the incapacitated adult in the same way a parent has the authority to make decisions for his or her minor child. Obtaining a guardianship can be tricky, and often involves psychological and physical examinations of the incapacitated adult, so it is a good idea to contact an attorney who can help you complete the necessary forms and get the required evidence in place. It is also a good idea to elect a substitute guardian (who serves if you are unable to) or a co-guardian (who serves at the same time you do) in the event that you are no longer able to serve as guardian at some point in the future. Doing so will avoid a scramble to appoint a new guardian after the unfortunate event has occurred. This person could be your spouse, an adult sibling or family member, or other trusted caretaker as long as that person agrees to be appointed and signs an Acceptance of Appointment.
How Can I Prepare for If Something Happens to Me?
There are several steps that you should consider taking as a parent of an incapacitated child in order to protect and provide for that child in the unfortunate event something were to happen to you.
First and most importantly, keep an updated will naming a successor guardian. If you have not gone through the formal Guardianship procedure (explained above), then the inclusion of a named guardian in your will can give the person you name the authority to make decisions on a temporary basis, and will trigger proceedings in the Probate Court to create a formal Guardianship.
Second, you can create what is called a “Spendthrift Trust” for your incapacitated child’s benefit. This trust can be administrated by a bank or by an individual you trust and can provide money for the care, support, and medical expenses of your child even after you pass away. A spendthrift trust can be created while you are alive (with you as the primary trustee and another person or bank as the secondary trustee) or in your will. If you put it into your will the funds will be distributed out of your estate after you pass away.
Third, you should create a Durable Power of Attorney with respect to your incapacitated child. This document gives some other person the authority to make all the decisions you ordinarily would if for whatever reason you become unavailable or unable to make those decisions. Essentially, it creates a go-to person if you can no longer make the decisions for your incapacitated child. Creating this document will allow a seamless transition between you and the new caregiver in the eyes of the medical institutions responsible for the care of your incapacitated child.
It is a good idea to make these documents early and keep them updated in preparation for the unexpected. A probate attorney can help you decide what steps are best for your particular case and can help you select trustees and successor guardians.
What Can I Do If I Get Divorced?
This may be the trickiest area of the law. Because of the limitations of the Michigan Child Custody Act, there is no way for a Family Court judge to force your ex-wife or ex-husband to assist in the care and support of your incapacitated adult child. It is recommended that you contact an attorney early, ideally when you first discover your child’s disability or incapacity, and request a postnuptial agreement. This agreement is essentially a contract between spouses that outlines how the parties will behave if there is ever a divorce. The postnuptial agreement can specify which party will take primary custody of the incapacitated adult child, can require the other party to contribute to the monetary support of the child, and can dictate how medical expenses will be shared between former husband and wife. The later this contract is entered into, the more suspicious some judges will be of it, and the less likely your spouse will be to agree to it, so take steps early to contact a family law attorney who can help you draft an agreement before you really need it.
It is understandably important to you to make sure that your incapacitated child will be cared for in the event of the unforeseen. It may seem at first as though there is nothing you can do, but with careful planning and a proactive approach, your child can be protected and provided for even after you pass away.
* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above. This post is not intended as legal advice and may not apply to your particular case. It is always best to contact our office for a consultation if you have been or believe you may have a legal issue. Wednesday, April 20, 2011 When is the Right Time to Call an Attorney?
Sometimes it can be hard to tell when it is the right time to call an attorney. Legal services are often expensive and sometimes you do not want to contact a lawyer until you are sure about going forward. Sometimes, potential clients call too soon, before their case has developed far enough for an attorney to help them. Worse, many potential clients wait until it is too late and their window of opportunity has passed. So how do you know when to pick up the phone, or send in an email? The answer depends on the type of case.
Criminal
It is almost never too soon to contact an attorney if you believe that you may be suspected or charged with a crime. Even if you have not yet been charged, having an attorney “on retainer” to represent you can protect your rights and make certain that you are not caught talking to the police alone when you would rather remain silent. Also, in some cases, an attorney can make deals that will keep you from even being charge if, for example, you agree to testify against one of the other people involved in the case. Having an attorney early also improves your chances of getting a fair pre-conviction bond so you will not be held in jail any longer than is necessary. This bond is usually set at the initial hearing, called an arraignment. While your attorney can file a motion to modify or reduce the bond later on, the arguments are often more persuasive at the start, and you can avoid having to wait in jail until the motion can be heard. All in all, there is no reason to wait to contact an attorney in a criminal matter. The sooner he or she becomes involved, the better.
Civil
There are many different kinds of civil cases, each with their own considerations. The Peter J. Johnson Law Office does not specialize in civil law, but there are occasions when the attorneys here can be retained. Civil law is the area where the most clients call too soon or too late. In order for a matter to be heard in a civil case, damages have to be definite. This means that the doctors have to be done diagnosing, if not treating any injuries, the repair shop needs to be done fixing the property or at least have provided an estimate, and all the numbers are in on the cost of the breach of contract. There are, of course, exceptions, but generally, it is not helpful to contact an attorney until you have reached this stage.
It is more important that you not wait too long, though. The State of Michigan, like most other states, have what are called “Statutes of Limitations” or windows of opportunity within which you can file a claim. The standard Statute of Limitations is 6 years, but particular types of matters, such as medical malpractice or auto negligence have shorter period – some as short as 1 or 2 years. More importantly, sometimes this is measured from when the injury actually happened, rather than when you found out it was a problem. Your best plan of action is to contact an attorney early in the process and find out what the window of opportunity is with respect to your kind of case.
Family
This can be the most difficult kind of case to decide just when it is the right time to get an attorney involved. Often matrimonial discord can be resolved with counseling or informal mediation without resorting to a divorce. Other times, there has already been a divorce, but the question is whether things will get better or worse if you ask a judge to reevaluate custody, support, or parenting time for your children. It is best in these cases to wait until you are certain of the change you want to happen, and you have proof of your claims. If you come in, for example, and tell the lawyer that you thing your wife or husband is cheating on you, it will likely cost you a lot more for the lawyer or private investigator to dig through all the facts than if you are able to show him or her the emails supporting the claim yourself. Also, remember that for child custody issues, the courts look at what is in the best interests of the child, and after a judgment has been entered, will only consider evidence of what has changed since the last order. Document anything you question and bring that documentation to your attorney when it is time. A motion can be started before you have the proof, but without evidence, you are not likely to get the result you want, and after the motion has been filed, your ex-husband or wife is not likely to cooperate nearly as much as he or she would have before.
Probate
Probate matters, including guardianships, conservatorships, and deceased estates can be the most emotionally trying times to contact an attorney, and for that reason many potential clients wait longer than they should to start the proceedings. For probate matters such as wills and powers of attorney, it is best to come in before you believe you really need the document. As a rule of thumb, if you have a house or a child, you need a will, and probably a power of attorney as well. That is because these documents protect you and your estate if something were to happen to you, even unexpectedly. For more complex matters, such as guardianships and conservatorships, an attorney should be contacted as soon as the need arises – that is, as soon as it is clear that the parents will not be able to care for the child or the disabled adult is not able to care for his or herself.
Most importantly, if you have had a death in the family, it is important to contact an attorney within 30 days of the death. If a will is not filed with the court within that time, creditors can initiate proceedings to claim the deceased’s assets. Even if all you can do is get the estate started, it is very important that an attorney be contacted right away. Waiting could threaten the wishes of the deceased as to what is to be done with his or her possessions.
Regardless of the area of law, deciding to bring in an attorney is no small matter. If you are unsure as to whether it is time, the best course of action is to talk to an attorney and see what he or she would recommend. Do not procrastinate. Sometimes the consequences of inaction can be dire, but they can usually be avoided by an early call to an attorney.
* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above. This post is not intended as legal advice and may not apply to your particular case. It is always best to contact our office for a consultation if you have been or believe you may have a legal issue. Wednesday, February 09, 2011 Do I Really Need to See an Estate Planning Attorney?
Nobody likes to think about his or her final days. It is natural to procrastinate and find excuses to put off making decisions about what you want to happen at the end of your life. But the reality is that those days can sneak up on you or could happen suddenly, without notice. When a person puts off dealing with his or her end-of-life decisions it can cause headache and heartache for his or her loved ones. This is why it is important for you to have a plan and the necessary documents in place before anything unfortunate happens.
The Will: How do I make sure the right people get my property after I die?
If you pass away without a valid will, then Michigan (and most other states) have statutes that govern the distribution of your estate. A large portion (sometimes the your entire estate) will pass to your surviving spouse if you have one. The statutes also contain provisions to pass your estate evenly to your children or their children in the unfortunate event that your children pass away before you do. If you have no spouse or children then the statute distributes your estate to your parents, siblings, nieces and nephews, and so on, and eventually, the State of Michigan. For some people, this is what they want, but usually there is some family heirloom, some charitable donation, or even just some special piece of personal property that you want to specifically control who receives it.
An Estate Attorney can help you figure out just what documents are necessary to give the people and organizations exactly what you want out of your estate. He or she can help you to draft a will that will govern part or all of the distribution of your estate. Think of a will as your final instructions for what to do with your property. It can be used to give specific items to specific people, make monetary contributions to organizations or individuals, or even give a blanket gift to one or more people. A will can also be used to designate guardians for your minor children or long-lived pets should something happen to you. The general rule for all attorneys in creating a will is “what does my client want?” so it is important to give careful consideration to what and how much you want to give to each person or organization. It is equally important that you give your attorney a full and accurate description of your assets so that he or she can write a will that is effective and enforceable after you pass away.
The Trust: How can I make the most of my estate for my beneficiaries after I die?
Trusts are complicated legal devices that attorneys use to give you even more control over the distribution of your estate. Trust law is very complex, so if you are considering a trust also consider seeing an attorney who specializes in trust law. Trusts can be used to set money or property aside while you are still alive for the benefit of your family or friends. They can also be established to provide for the care of a particular piece of real property, a particular person in your care, or a pet. Trusts can even be used to hold money safe for young beneficiaries who may not be ready to make the kinds of decisions necessary when a person receives a large amount of money. Most importantly, the use of a trust can avoid substantial estate taxes that can be imposed against your estate at the time of distribution (if your estate is large enough). Talk to your attorney about the potential benefits and costs of including a trust in your over all estate plan. He or she may have some ideas on how to make the most of what you want to give.
The Designation of Patient Advocate and Living Will: How do I control what happens to me in my final days?
Everyone hopes that they will remain healthy throughout their lives until they pass away quietly in their sleep. Sadly, this is more and more often not the case. Advances in medical technology have created longer and longer periods of time when the terminally ill are still alive, but not competent to make decisions for their own care. It is not enough that a person be able to nod or shake his or her head. For doctors to take the necessary steps to treat a person he or she must be able to give informed consent. Often, the course of modern medicine requires difficult decisions to be made at a time when the patient is or close to incapable of making those decisions. The question arises, how do you make sure the doctors do what you want them to do in you final days?
There are two kinds of documents that can assist in this element of estate planning: Living Wills and Designations of Patient Advocates. A living will is a document that outlines your choices and preferences on end-of-life treatment and so-called “extraordinary measures” including resuscitation. The extent to which a living will is honored in Michigan is not clear, so this document should be used carefully, and is best if used in conjunction with a Designation of Patient Advocate.
A Designation of Patient Advocate names one or more persons to make medical decisions on your behalf when you are no longer capable of making them yourself. The Patient Advocate has final say on the treatment of a patient who is no longer legally competent to give informed consent him or herself. This includes the right to “pull the plug” or otherwise cease life-prolonging treatments. Because these decisions are quite literally life and death, it is best to prepare a living will and otherwise give instructions that the Patient Advocate can use to guide him or her in deciding what it is you would have wanted if you were in a position to decide for yourself.
The Durable Power of Attorney: How do I make sure that my affairs are taken care of in my final days?
The Durable Power of Attorney is the most often overlooked of the estate planning documents. Where the Designation of Patient Advocate names a person to make medical decisions for you, the Durable Power of Attorney is the document that allows another person to make all the other important decisions. This includes everything from making your mortgage payment to paying for that expensive end-of-life medical treatment while you are in the hospital. Remember, if you are legally incompetent, then your signature will not be enough to write checks or authorize payments for all those things that you pay for every day. The Durable Power of Attorney gives another person the authority to enter into contractual agreements on your behalf, even if you are not able to enter them yourself. That makes the Durable Power of Attorney an essential part of an estate plan that should not be omitted.
Estate planning takes time and careful forethought into your wishes and the best ways to carry them out. While it is possible to go it alone and rely on state statutes, an Estate Attorney can help you to take control of your affairs and make sure that what you want happens both in your final days and after you have passed away.
* Please note: Every case is different, and there may be some aspect of your particular case which may result in an outcome other than is described above. This post is not intended as legal advice and may not apply to your particular case. It is always best to contact our office for a consultation if you have questions related to a Probate Law matter such as an estate plan. |